This is an application for summary judgment.

The plaintiff issued summons against the defendant on 10 September 2009 claiming the following:

1. Payment of the amount of US$52,579=51 with interest thereon capitalized monthly at the rate of 12% per annum from 7 September 2009 to date of payment in full;

2. Costs of suit on the scale between legal practitioner and client together with collection charges.

3. An order declaring the mortgaged property to be especially executable.

In its declaration, the plaintiff pleaded the cause of action between the parties as a loan advanced to the defendant on 29 May 2009 in the sum of US$50,000=. It was allegedly a term of the loan agreement that the full amount of the loan, together with interest thereon, would become payable in full on or before 29 August 2009.

On 24 August, the defendant passed a mortgage bond over a certain piece of land as security for the loan advanced to him by the plaintiff. It was a specific term of the mortgage bond that the defendant would repay the first installment agreed upon between the parties on or before 7 September 2009. It was allegedly a further term of the mortgage bond that in the event the defendant failed to pay the first instalment on due date, the full amount of the loan, together with interest thereon, would become due and payable. It was alleged, in the declaration, that the defendant had failed to make the payment on due date hence the issuance of the summons three days later.

The defendant entered an appearance to defend the claim on 23 September 2009.

On 5 October 2009, the plaintiff filed this application for summary judgment. To the application was attached an affidavit deposed to by one Sinikiwe Elizabeth Mukondiwa (“Mukondiwa”), the plaintiff's Back Office Operations Manager. In her affidavit, Mukondiwa deposes that she is duly authorised to depose to the affidavit on behalf of the plaintiff and that the facts deposed to in the affidavit are within her personal knowledge.

Sinikiwe Elizabeth Mukondiwa proceeds to state, boldly, and baldly in my view, that she verifies the plaintiff's cause of action in the matter and the amount claimed by the plaintiff. She however does not state how the amount claimed is arrived at before she proceeds to observe that the defendant has entered appearance to defend the matter solely for the purposes of delay as it is her belief that he does not have a bona fide defence to the claim.

In the affidavit, Mukondiwa gives a history of the loan transaction between the parties. She deposes that the defendant was obliged to pay the first instalment on 1 July 2009 but failed to do so. She further narrates how the defendant made three payments during the month of July 2009 which, in her view, fell short of the demand made by the plaintiff to the defendant. This led the plaintiff to claim the full amount of the loan and the interest accrued thereon, she concludes.

The application for summary judgment was opposed.

In opposing the application, the defendant alleged that the issuance of summons in the matter was premature as the debt was not yet due and payable. He further averred that the plaintiff did not give him notice of its intention to foreclose on the mortgage bond and that the amount of the claim was incorrectly stated as he borrowed $50,000= and not the $52,579=51 that is being claimed.

At the hearing of the matter, counsel for the applicant applied to amend the plaintiff's summons by correcting the amounts that are stated in paragraph 6 of the declaration. The effect of the amendment is to increase the amount of interest that has accrued on the capital loan from $579=51 to $2,579=51 and the amount of the total amount claimable from the defendant from $52,058=93 to $52,579=51. In her oral application for the amendment, she stated that the figures had been incorrectly typed into the declaration.

The application to amend the declaration at this stage in the proceedings was opposed.

In opposing the application, counsel for the respondent submitted that it is incompetent to amend the pleadings in an application for summary judgment proceedings as the amendment necessarily implies that the plaintiff's claim, as stated in the declaration filed of record, is incorrect.

Secondly, I understood counsel for the respondent to be submitting that the amendment, if granted, would need to be freshly verified by a person who can swear positively to the facts for the summary judgment application to proceed. The affidavit purportedly filed on behalf of the plaintiff of record verified the incorrectly stated claim and cannot be used to verify the amended claim as it predates the amendment.

I find merit in the submissions by counsel for the respondent.

In my view, the general approach of this court, to the amendment of pleadings generally, is well settled. The Court will endeavour to permit the parties to a dispute to bring before it any issue upon which they seek to rely to avoid the possibility of stifling, upon technical grounds, an attempt by a party to bring up material facts before the court. Amendments to pleadings are generally granted unless there is some special reason to the contrary. See Middledorf v Zipper 1947 (1) SA 545 (SR).

However, summary judgment proceedings demand different considerations. This is so because summary judgment, as a procedure, is extraordinary in that it takes away from the defendant some of the safeguards that are guaranteed by a full trial. It is a drastic remedy that is based on the supposition that the plaintiff's claim is beyond impeachment on any material basis and that the plaintiff is merely being held back from getting judgment by the rigors of a full trial which are then curtailed to his or her advantage. For the plaintiff to gain such an unusual advantage over the defendant, he or she must meet certain very stringent requirements as set out by the rules. It has thus been held, time and again, that plaintiffs wishing to use the speedy procedure of summary judgment must bring themselves squarely within the provisions of the rules. See Scropton Trading (Pvt) Ltd v Kumalo 1998 (2) ZLR 313 (SC); Chiadzwa v Palkner 1991 (2) 33 (SC); and Stanbic Bank Zimbabwe Ltd v Dickie & Anor 1998 (1) ZLR 205 (HC).

As stated by GUBBAY CJ in Scropton Trading (Pvt) Ltd v Kumalo 1998 (2) ZLR 313 (SC), one simply cannot ignore the requirements of Rule 64 of the High Court Rules 1971 or request the court to condone a departure from strict observance of this rule. To do so would, in my view, to take away the extraordinary nature of the procedure and also to further erode the protection that defendants have to the right to be heard in full before judgment is given against them. Applications for summary judgment will then resemble all the other opposed applications where the court is enjoined to take a robust view of the facts and condone departures from the observance of the rules in the interests of doing justice as between the parties.

The nature of the procedure that is summary judgment, in my view, is ample justification for the requirement that a plaintiff resorting to summary judgment must have an unanswerable claim as pleaded in his or her summons and declaration and as verified in the affidavit that must be filed in terms of the rules.

Two issues immediately present themselves from this requirement of the law. Firstly, it appears to me that where the plaintiff's claim, as pleaded in the summons or declaration, is erroneously stated or is inaccurate for whatever reason and requires amendment, summary judgment cannot be granted on that claim. This is so because the incorrect claim is not beyond reproach.

Further, it appears to me that axiomatically, an incorrectly stated claim is not capable of verification unless the deponent to the verifying affidavit is not telling the truth or is unaware of the facts giving rise to the claim.

It is my view that an incorrectly stated claim is not verifiable and cannot thus be the basis of an application for summary judgment. It cannot be amended for the procedure of summary judgment.

Where the amount claimed in the summons differed from the amount verified in the verifying affidavit, this court dismissed an application for summary judgment. See Stenslunde & Co (Pvt) Ltd v Banwell Engineers Ltd 1988 (2) ZLR 327 (H).

Thus, one cannot rely on the amount of the claim in the verifying affidavit as the correct amount for the purposes of granting of summary judgment. The same amount must appear in both the pleadings and in the verifying affidavit.

In my view, one cannot even rely on those portions of the amount that are not in dispute for the purposes of obtaining summary judgment and discard those that are in doubt.

So stringent are the requirements for summary judgment that without the leave of the court, a supplementary affidavit further verifying the claim cannot be filed. A supplementary affidavit can be filed for the purposes of dealing with issues raised in the opposing affidavit that have the effect of catching the plaintiff by surprise. The plaintiff cannot have two bites at the cherry and must ensure that the declaration and the verifying affidavit are unanswerable at the time of filing.

In casu, the plaintiff wishes to amend its declaration before proceeding with the application for summary judgment already filed of record. I have a difficulty with us proceeding in this fashion.

Firstly, the declaration, as filed of record, is clearly not without answer. It contains an error that is patent and one which the plaintiff itself realizes must be corrected before proceeding further. Secondly, the verifying affidavit filed of record cannot be used to verify the amounts of the amended claim. In my view, a fresh affidavit will need to be filed, verifying the plaintiff's cause of action as pleaded in the amendment.

While I am not determining the application for summary judgment itself, it appears to me that it is inadequate for a deponent to an affidavit verifying the plaintiff's claim and amount claimed, if any, to simply state boldly, and badly, that they verify the claim and the amount claimed without giving details. Verifying the claim, in my view, denotes more than restating the claim and amount claimed in the same language employed in the pleadings. It requires, in the case where an amount is claimed, to break down the amount, where appropriate, and to show how the total amount of the claim is arrived at, especially in matters where there is an accounting element.

In my view, had the deponent to the verifying affidavit in this matter correctly verified the claim and detailed how the amount of the claim was arrived at, appropriating the payments already made by the defendant to either capital or interest, the plaintiff would have realized that the amount of the interest claimed in the summons was understated and may have taken corrective steps much earlier.

In the result, I make the following order:

The application to amend the plaintiff's declaration is dismissed with costs.

The following facts are common cause. On 22 January 2010 the parties entered into an agreement in terms of which the applicant lent the sum of US$9,500= to the respondent. It was an express term of the agreement that payment would be made within seven days from the date of lending. The respondent failed to repay the lent amount within the agreed period. He then requested for an extension of time and it was agreed that he would pay back the full amount on or by 30 June 2010. The respondent signed an acknowledgement of debt in which he acknowledged owing the respondent the sum of US$9,500= and also promised to pay the amount owing by or on 30 June 2010.

The following is also stated on the acknowledgment of debt:

“I agree that if I fail, for any reason, to pay this amount by the agreed date an interest of 25% will be charged.

Legal action will be taken if the money plus interest is not paid within 24 hours from the above agreed date of payment.

I hereby undertake and agree to pay the 25% interest, collection charges as well as costs of suit for the legal practitioner and any other costs incurred by CHIEDZA CHIKOMO if legal action should be taken against me for the recovery of this debt or any other sums due in terms of this acknowledgment of debt.”

The respondent did not make the payment by or on 30 June 2010. The applicants' legal practitioners wrote and served the respondent with a letter of demand. The respondent did not respond. On 16 July 2010, the applicant, through his legal practitioners, caused summons to be issued against the respondent claiming payment of the $9,500=, interest thereon of 25% of the capital debt, 10% collection commission and legal costs at the legal practitioner and client scale.

The respondent was served with the summons and he entered appearance to defend through his legal practitioners. The applicant has now made this application for summary judgment on the basis that the respondent has no defence to the claim for the capital debt of $9,500=.

The respondent opposes the application on the grounds that although he is indebted to the applicant for the capital debt of $9,500=, the applicant is claiming usurious interest and that the applicant is not a lending institution or a registered money lender in terms of the Moneylending and Rates of Interest Act [Chapter 14:14]. Furthermore, the claim for collection commission is not within the ambit of the Law Society tariffs and has no legal basis. The respondent also contends that as the agreement between the parties is consequently illegal, it would be equitable for costs to be on an ordinary scale.

In Kingstons Limited v L D Innerson (Pvt) Ltd SC08-06 ZIYAMBI JA stated:

“Not every defence raised by the defendant will succeed in defeating the plaintiff's claim for summary judgment. Thus, what the defendant must do is to raise a bona fide defence - a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which, if established, would entitle him to succeed.”

In casu, the respondent does not deny liability in respect of the principal debt in the sum of US$9,500=. His opposition to the application is principally on the issues of interest, collection charges and costs. These issues are all dealt with in the acknowledgment of debt.

Section 8 of the Money Lending and Rates of Interest Act [Chapter 14:14] stipulates as follows:

“8. Maximum rates of interest

(1) No lender shall stipulate for, demand, or receive from the borrower interest at a rate greater than the prescribed rate of interest.”

The respondent seeks to find refuge in this provision in his quest to defeat the application. However, section 4 of the Prescribed Rates of Interest Act [Chapter 8:10] provides as follows:

“If a debt bears interest and the rate at which interest is to be calculated is not governed by any other law or by an agreement or trade custom or in any other manner, such interest shall be calculated at the prescribed rate as at the date on which such interest begins to run, unless a court of law, on the ground of special circumstances relating to that debt, orders otherwise.”…,.

In casu, the rate at which interest is to be calculated is governed by agreement, as reflected in the acknowledgment of debt. The respondent cannot, therefore, in my view, find any escape from the applicants' claim for 25% interest as this is based on or governed by the agreement between the parties. Furthermore, by virtue of the provisions of section 4 of the Prescribed Rates of Interest Act [Chapter 8:10] the acknowledgment of debt cannot, as counsel for the applicant correctly submitted, be said to be tainted with illegality. The applicant's claim for 25% interest is thus justified and the respondent has no valid or bona fide defence against it.

The other claims contested by the respondent in casu are the claims for collection commission and costs on a legal practitioner and client scale.

The applicant's legal practitioner referred the court to case authorities including Tselentis House (Pvt) Ltd v Southern African P&P House (Pvt) Ltd 1995 (1) ZLR 56 (H) and SEDCO v Guvheya 1994 (2) ZLR 311 (H) in support of the proposition that where a party agrees to pay collection commission and legal costs, as in this case, the court should grant an order for the same.

In Scotfin Ltd v Ngomahuru (Pvt) Ltd 1997 (2) ZLR 567 SMITH J and GILLESPIE J stated…,:

“As is well known, costs are awarded at this higher rate only in exceptional circumstances. They may, however, be awarded when there is agreement to such an effect. The purpose of such agreement, quite obviously, is the same as the intention behind an agreement that the debtor will be liable to reimburse his creditor collection commission. It is to ensure that the creditor does not suffer the inevitable loss which will be incurred as a result of the taxation of a party and party bill, even though he recovers his costs.”

They proceed at 584 F-G:

“The appropriate form of order for such relief moved in the High Court is accordingly the following, where there is an agreement between the creditor and debtor that collection commission and costs on the higher scale may be recovered:

'Judgment for the plaintiff in the sum of $x together with interest at the prescribed rate, presently y% per annum from…, until the amount is paid in full and collection commission thereon calculated in accordance with by-law 70 of the Law Society of Zimbabwe by-Laws, 1982, and costs on the legal practitioner and client scale to the extent such costs are permitted in proviso (iii) to by-law 70(2).'

Where there is no agreement…,.”

In the acknowledgment of debt in casu the respondent agreed, inter alia, that should legal action be taken against him for the recovery of the debt, he would pay “collection charges as well as costs of suit for the legal practitioner and any other costs incurred” by the applicant.

There is no agreement to pay costs on the legal practitioner and client scale. The statement merely states “costs of suit for the legal practitioner”. I am not persuaded it is necessary to exercise discretion and award costs on the legal practitioner and client scale as urged by the applicants' legal practitioner. Costs will be awarded on the ordinary scale.

The respondent also agreed to pay collection charges. I will be guided by the formulation in Scotfin Ltd v Ngomahuru (Pvt) Ltd 1997 (2) ZLR 567…, in granting the relief sought by the applicant in this respect.

The respondent has failed to raise a bona fide defence to the applicant's claim. He has not alleged any facts which, if established, would entitle him to succeed. His lack of bona fides is also shown by his non- payment of even the capital debt only, for which he does not dispute liability.

In the circumstances, it appears to me that there is no impediment to the granting of the order sought by the applicant with the modifications indicated above. It is therefore ordered as follows:

IT IS ORDERED:

1. That the respondent shall pay to the applicant the sum of US$9,500= together with 25% interest therein; collection commission therein calculated in accordance with by-law 70 of the Law Society of Zimbabwe By-Laws, 1982 and costs of suit.

The respondents have raised a procedural issue with this application. The founding affidavit does not verify the cause of action.

Order 10 Rule 64(2) of the Rules of the High Court, 1971, requires that an applicant for summary judgment must:

(a) Verify the cause of action.

(b) State that in the belief of the deponent, there is no bona fide defence to the main action.

This is an application for summary judgment whose draft order reads:

“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.

2. The respondent pays costs of suit.”

This is one of several similar matters in which the applicant is seeking the eviction of its former employees from company houses on the basis that the former employees were mere tenants whose employment has since terminated.

The former employees, just like the respondent herein, argue that the applicant sold the houses to them.

The respondent argues that he has a bona fide defence to the applicant's claim. That defence is explained as follows:

In 1998, the applicant, as part of its staff retention scheme, proposed to sell its housing units to its employees over a five year period. By then, the life-span of the mine had been projected to be around five years. The scheme would also help the applicant realize better value from the disposal of the houses in that manner as opposed to by selling them upon closure of the mine in an environment akin to a ghost town.

As a sequel to the proposal, a lot of deliberations were held on the issue and a Housing Committee was put in place composed of representatives of the employees and the applicant.

The relevant minutes were attached to the opposing papers.

Minutes of 8 May 2003 read:

“2.1 Sale of Residential Properties

The process was still ongoing and progressing well. The Finance Director, together with the workers representative went to consult a lawyer to resolve the outstanding issues. The lawyer came up with what he advised as the best option. Minor changes were made to what the lawyer proposed to suit the employee's needs. Whether that is acceptable will be determined when forms are taken back to the lawyers. IT WAS AGREED that the issue be pursued closely so that it comes to rest.”

Minutes of 24 August 2003 read:

“2.1 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. A hurdle on the revaluation of the houses was cleared with Mr Kwaku-Akosah-Bempah when he visited the mine during the second quarter. The Finance Director, together with the worker's representative, had been to the lawyer with the final draft to which the lawyer had already responded….,.”

Thereafter, what was termed a Memorandum of Agreement BETWEEN Ashanti Goldfields Management and Employees was signed. It provided:

“Ashanti Goldfields Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats and Low Density to its employees who are sitting tenants effective 1 December 2003. Find the agreed prices attached.”

The attached schedule has names of the sitting tenants, house number, new valuation of the house, and monthly repayment amount.

On 12 December 2003, the respondent (and other employees) entered into what is headed Agreement of Lease with the applicant.

The material clauses of the “lease” state that the lease period would be for five years, monthly rent of not more than 25% of the lessee's basic salary which would escalate periodically at a rate and on the basis described in Annexure 'A' viz:

“The value of the property will be revalued each time the employee is awarded the annual salary increment. The outstanding balance as at the effective date of the increment is what is revalued. The revaluation will be calculated as follows:

50% of the salary increment (%) x the outstanding balance (as at that date). The revalued outstanding balance will then be divided by the remaining period to get the monthly payment.”

The purported lease agreement was simply a vehicle through which deductions would be made from the respondent's salary.

This explains why the applicant, on the respondent's payslip, put a deduction titled “Rent to Buy” and why the applicant accepted a lump sum payment in full and final settlement of the sums payable to it under the agreement of sale before the expiration of the purported lease period.

Also, the minutes of 16 December 2003 are apposite. The relevant part reads:

“3.0 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. Management had approved and concluded the sale. The employees are busy filling in the contract forms.”

Pertinent to note here is that this was said after 12 December 2003 purported lease agreement.

While there exists a plethora of case law on the subject of summary judgment, the locus classicus is that of Maharaj v Barclays National Bank Limited 1976 (1) SA 418 (AD)…, where CORBETT JA said:

“Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court, by affidavit, that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material alleged by the plaintiff in his summons…, are disputed, or new facts are alleged constituting a defence, the court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of one party or the other.

All that the court enquires into is:

(a) Whether the defendant has fully disclosed the nature and grounds of his defence and the material facts upon which it is founded; and

(b) Whether, on the facts so disclosed, the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.”

On the facts so disclosed in casu, I am persuaded that the respondent's defence is bona fide and good in law.

I also derive solace in reaching this conclusion from the salutary words of GUBBAY JA…, in Jena v Nechipote 1986 (1) ZLR 29 (S)…, where the LEARNED JUDGE OF APPEAL held:

“All the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of his success; he has a plausible defence; there is a triable issue; or there is a reasonable possibility that an injustice may be done if summary judgment is granted.”

The respondent's explanation, expounded above, right through its chronology of events pertaining to the disposal of residential properties, does amount to a trial issue. There exists a reasonable possibility of an injustice being done if summary judgement were to be granted.

I am constrained to utter the following strictures concerning the applicant's obduracy.

As stated above, there are scores of similar cases involving the applicant and its former employees. One such is Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 wherein I dismissed a similar application on the same grounds.

The applicant seems to be engaged in a process of judge-hunting because several similar cases are either pending before other judges or have been dealt with meeting with the same fate of dismissal.

In 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 MAKARAU JP…, following a full trial based on similar claims, distinguished Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 which the applicant seems to rely on in its claims and held that the facts in HH139-09 established a sale.

Those facts fall on all fours with the facts in casu as well as those in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 in which I dismissed the application for summary judgment and gave the respondent unconditional leave to defend.

Although the judgment in 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 was appealed against, and the appeal is still pending, it is only prudent and proper that the applicant should await its outcome and stop judge hunting in order to avoid creating a multiplicity of contradictory judgments involving the same issue thereby causing confusion and injustice.

Since the facts and argument in casu fall on all fours with the cases dealt with by MAKARAU JP…, cited supra, and Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 I dealt with supra, the present application for summary judgement be and is hereby dismissed and the defendant is given unconditional leave to defend the action.

The applicant is ordered to pay the costs of this application.

It is trite law that not every defence raised by a defendant will succeed in defeating a plaintiff's claim for summary judgment. The defendant must raise a bona fide i.e. a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. 

The defendant 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.

This is an application for summary judgment in which the applicant seeks an order in the following terms:-

“It is ordered that:-

1. Summary judgment be and is hereby granted for respondent's eviction (and all those who claim through him) from the premises situate at number 2918 Emakhandeni, Bulawayo, within seven days of this order, failing which the Deputy Sheriff for Bulawayo be and is hereby authorized to carry out the eviction of the respondent, and all those claiming through him, from such premises;

2. The issue of rentals and the quantum thereof be and is hereby referred to trial;

3. Respondent pays costs of this application.”

The applicant bought, from one Girison Afia, in terms of a written Agreement of Sale, an immovable property known as Stand 2918 Emakhandeni, Bulawayo, on 10 October 2006.

The purchase price was $4,800,000=, which the applicant paid in full. Girison Afia had bought the property at an auction conducted by the Small Enterprises Development Corporation on 23 December 2005. Transfer of the property into the applicant's name was effected on 13 June 2007.

Thereafter, the respondent was given notice in writing to vacate the property, but refused to do so.

The applicant issued summons seeking to evict the respondent from the said property. The respondent entered appearance to defend.

The applicant then launched this application for summary judgment as she believed that the respondent had no bona fide defence to her case.

The respondent opposed the application on the basis that the applicant was not a bona fide purchaser of the property, but failed to establish a bona fide defence to the applicant's claim.

The applicant could not have been a mala fide purchaser since her agreement with Girison Afia shows that Girison Afia purchased the property at an auction conducted by the Small Enterprises Development Corporation. Further, Girison Afia was the holder of title to the property granted in terms of a court order. Quite clearly, the applicant was a bona fide purchaser.

The respondent has no defence at all to the applicant's claim.

Order 10 Rule 64 of the High Court Rules, 1971 (Rule 64) provides as follows:

“(1) Where the defendant has entered appearance to a summons, the plaintiff may 'at any time before a pre-trial conference is held' make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs.”

This application for summary judgment is premised on the above rule and the applicant prays for the following order:-

“Summary judgment with costs be and is hereby granted in favour of the applicant against the respondent in the sum of US$13,145=98 together with interest on that sum at the prescribed rate reckoned from the date of service of summons to date of payment in full, plus collection commission.”

The relief sought is in line with the claim in the summons issued on 20 January 2010 and served on the respondent on 28 January 2010. The respondent entered appearance on 11 February 2010, and, convinced that the defendant had no bona fide defence to his claim, the applicant filed this application on 2 March 2010.

The applicant's declaration reveals that the claim is based on an acknowledgement of debt signed by the respondent on 9 September 2009. The acknowledgment of debt reads as follows:-

“I, Joseph V Sithole, ID number 70-041987T13, of 66 McChlery Avenue, Eastlea, Harare, hereby acknowledge indebtedness of US$11,000= as capital to Steven Hudson of Skinners Autobody Repairs, Manchester Road, Southerton, Harare. Over and above that, an interest accrual of US$2,145=98 was levied as at October 2009.

I undertake to liquidate part of the said by October 15, 2009 with the balance having to be negotiated for a future date to settle.

This acknowledgment of debt is covered under the jurisdiction and laws of Zimbabwe.”

The claim in the summons states that the amount claimed is in respect of “services rendered to the respondent by the applicant at the respondent's special instance and request”. The founding affidavit and the acknowledgement of debt are, however, silent on how the debt originated. However, in his opposing affidavit the respondent acknowledges the rendering of services in the following terms:-

“The applicant runs a panel beating workshop. I had a vehicle, a Mercedes Benz, which was involved in an accident. The applicant and I agreed that the applicant would effect the repairs. The applicant even advised that he was going to import some of the materials to be used on effecting repairs on my vehicle. However, the applicant never showed me the receipts and the invoices to substantiate his claim.”

The above is in line with the wording of the claim in the summons.

The respondent then declares that he refused to honour the acknowledgement of debt because the amount claimed was not correct. He goes on to say he had only signed the document under duress because the applicant:-

“1…., caused a scene at my workplace in barricading my vehicle so that I could not go home.

2…., declined to get out of my office to an extend (sic) that I signed the 'paper' to let the applicant get out off (sic) my offices.”

The respondent also says:-

“I further paid the applicant Rands equivalent to US$1000=. I also gave the applicant a sizeable volume of fuel which will meaningfully reduce the amount owned to the applicant.”

The above, in my view, sums up the respondent's defence.

The applicant submitted that there was no evidence of threats or intimidation to show that the respondent signed the acknowledgement of debt under duress. There was nothing to show for the respondent's reaction to the alleged coercion. Furthermore, there was also no evidence of payment of US$1000= and fuel.

Apart from arguing that he was not issued with receipts in respect of imported spares the respondent does not deny that he owes the applicant some money for services rendered. That money, according to the applicant, is what appears in the summons. The appearance to defend was, in the view of the applicant, entered for delaying purposes.

On his part, the respondent argued that there were triable issues because there was a dispute relating to the issue of whether or not the applicant imported the spare parts for the respondent's vehicle. Furthermore, the respondent had raised the defence of duress.

Relying on Hughes v Lotleit 1985 (2) ZLR 179 HC, the respondent correctly quoted the following:-

“Summary judgment will only be granted where the plaintiff has made out a cause of action to which the defendant has no possible defence.”

The defendant went on to quote from Hughes v Donenek Investments (Pvt) Ltd 1998 (2) ZLR (H) where it was said:-

“All the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that “there is a mere possibility of success;” he has a plausible case; there is a real possibility that an injustice may be done if summary judgment is granted.”

I agree with the above.

Given the import of Rule 64 and the principles of law enunciated in the above two cases, what remains for me to do is to determine whether or not there is a possible defence to the applicant's claim for me to deny him the relief he seeks.

A proper reading of the papers before me leads to the conclusion that there is nothing to disable me from granting the applicant the relief he seeks. This application conforms with the requirements of Rule 64.

The respondent has, without convincing reasons, tried to disown the acknowledgement of debt. The alleged coercion/duress would, in my view, have called for the need, on the part of the respondent, to report the matter to the police immediately as the alleged act of the applicant would amount to extortion. There is nothing in the papers before me to show that the respondent took any steps to ensure that the truth (i.e. alleged coercion) about the acknowledgement of debt signed on 9 September 2009 was known. This application was filed on 2 March 2010 and only on 8 March 2010 did the respondent then find it necessary to tell the world that on 9 September 2009 he was forced to sign a “piece of paper”.

Furthermore, the respondent, without proof, then goes on to say he paid US$1000= and gave the applicant a sizeable volume of fuel. There are no receipts and dates mentioned for those transactions.

A rejection of the alleged defence by the respondent leads me to accepting the applicant's case as presented. In so deciding, I also derive comfort from the fact that the respondent accepts that he owes the applicant some money for services rendered.

In dealing with an application for summary judgment in Central Africa Building Society v Ephison Simbarashe Ndahwi HH18-10, MAKARAU J…, observed:-

“However, summary judgment proceedings demand different considerations. This is so because summary judgment, as a procedure, is extraordinary in that it takes away from the defendant some of the safeguards that are guaranteed by a full trial. It is a drastic remedy that is based on the supposition that the plaintiff's claim is beyond impeachment on any material basis and that the plaintiff is merely being held back from getting judgment by the rigors of a full trial which are then curtailed to his or her advantage. For the plaintiff to gain such an unusual advantage over the defendant, he or she must meet certain very stringent requirements as set out by the rules. It has thus been held, time and again, that the plaintiff's wishing to use the speedy procedure of summary judgment must bring themselves squarely within the provisions of the rules.”

I fully agree that the above clearly sets out the principles to be considered in granting summary judgment.

Having taken the outlined principles into consideration, I am, in casu, fully convinced that the respondent has filed an appearance to defend merely to delay the inevitable. My finding, therefore, on a balance of probabilities, is that the respondent has no bona fide defence to the action. The claim is accepted but the respondent merely wants to avoid payment. There is therefore no reason for me to deny the applicant the relief he has prayed for.

It is accordingly ordered as follows:-

1. That summary judgment with costs be and is hereby granted in favour of the applicant against the respondent in the sum of US$13,145=98 together with interest on that sum at the prescribed rate from 28 January 2010 to date of payment in full; and

2. That the respondent shall pay costs of suit.

The applicant and the respondent entered into three lease agreements in terms of which the applicant leased to the respondent its premises located at 4^th to 7^th Floors, LAPF Centre, at corner Chinhoyi Street and Jason Moyo Avenue, Harare. The first of these agreements was concluded on 9 November 2004. In terms of that lease, the applicant leased to the respondent the 4^th and 6^th floors of LAPF Centre. In December 2004, the parties concluded another lease in respect of the 5^th and 7^th floors in the same building. The final agreement was concluded in October 2006 and was in respect of portions of the 5^th floor of the said building.

The pertinent provisions of the lease agreements can be summarized as follows:-

1. Clause 3.1 provided that the respondent would pay rent monthly in advance on or before the first day of each month.

2. By clause 4 of the agreement, the respondent would pay to the applicant a prorata share of operating costs calculated in accordance with the lettable space occupied by the respondent.

3.  By clause 20.3, the respondent undertook to pay the applicant's costs on a legal practitioner and client scale should the applicant incur legal costs arising from the respondent's default on the lease agreements.

Although the lease agreements expired, the above provisions were saved by clause 2.3.

The applicant claims that from February 2009 to date the respondent has not paid rent for the above premises nor has it paid operating costs amounting to US$82,443=25.

On 6 February 2009, the respondent, through its then legal practitioners, offered to pay US$9,000= per month as rent. This offer was accepted but the applicant claims that, despite its undertakings, the respondent has failed to settle its indebtedness to the applicant.

The respondent opposes the application....,.

To my mind, rentals were, from February 2009, fixed at that sum. The suggestion that the applicants were overpaid when the 2008 rentals were made is simply ridiculous as no suggestion was made at the time of payment. It cannot arise now. The respondents failed to pay rent and other related charges in the form of operating costs. In my view, the respondents have no defence to the claim....,

This is an application for a summary judgment.

The historical background and genesis of this matter is that the applicant is a yesteryear international football icon entered into an employment contract with the respondent, Highlanders Football Club.  The contract was signed on the 7^th October 2008. One of the terms and conditions of the contract was that the club was to pay him US$5,000= per month and US$3,000= for the 2009 season. The club fell into financial difficulties and failed to pay him. The total amount due is US$18,580= which amount was acknowledged to by the club's representative on the 3^rd of August 2009.

Despite demand, the respondent has failed to honour their part of the agreement resulting in these proceedings.

At the start of this hearing, the respondent raised two points in limine, namely, that this court has no jurisdiction to hear this application as it is a labour dispute. The second point being that this was an illegal contract as the club and Madinda contracted to pay and be paid in foreign currency respectively without authority from the Exchange Control Authority.

On 7 April 2010 the plaintiff herein issued summons against the defendants, jointly and severally claiming an amount of USD$364,434=. 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= 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.

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=.

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=. They, however, deny that they collected USD364,434= 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 USD364,434=. 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 USD125,000= 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.

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 pp466-467, 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..., MAKARAU J..., stated-

“The unstated presumption in Rule 64(1) and Rule 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....,.

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.

Counsel for the respondents, 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.

The claim for summary judgment succeeds and I make an order in the following terms-

IT IS ORDERED THAT

1. 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;

Sometime in August 2005, and at a sale in execution, the applicant purchased the first respondent's rights, title, and interest, in Stand 124, The Grange Township of the Grange, commonly known as Number 4 Wroxham Road, The Grange, Harare...,. On 7 September 2005, the second respondent confirmed the sale. The first respondent then filed an objection to the sale in terms of Rule 259.

The second respondent dismissed the objection on 4 October 2005.

The first respondent proceeded to file an application, to this court, for the sale to be set aside. The application was dismissed with costs on 1 June 2006.

The first respondent appealed against the decision to the Supreme Court. The appeal was struck off the roll for want of compliance with the Supreme Court Rules. An attempt to have the matter re-instated was dismissed by the Supreme Court on 4 June 2008.

In the meantime, the second respondent, in a letter dated 4 January 2006, but only delivered to the applicant on 4 February 2009, advised that he had recommended that the sale be aborted as the creditor had been paid in full. He also returned the applicant's cheque which he advised was now stale.

On 11 May 2009, the applicant instituted an action whereby he claims an order directing the second defendant to transfer the first defendant's right, title, and interest in the property to him, ejectment of the first defendant and all those claiming through her from the property and cost of suit.

The first respondent entered appearance to defend.

The applicant then filed the present proceedings for summary judgment.

It was contended by the applicant that all issues raised by the first respondent in her defence are res judicata. The first respondent, in effect, seeks to impugn the validity of the sale of the property. This issue has been adjudicated upon by this court and the Supreme Court.

The first respondent opposes the application on two main grounds.

She contends that the applicant claims damages, which are not liquidated, through summary judgment procedure. In the summons and declaration, the applicant claims holding over damages in the sum of $1,000=. In the application for summary judgment the amount of $1= per month is mentioned. No application to amend the summons and declaration was made.

Secondly, she contends that the applicant did not pay the purchase price. He made a payment by a cheque which cheque was not deposited. The cheque became stale and was later returned to him.

The procedure of summary judgment is not available in a claim for damages which are not liquidated.

In casu, the first respondent puts in issue the question of liability and obviously the quantum. It does not assist the applicant to reduce the claim to a nominal amount of US1= as he still has to prove the basis for claiming the amount.

The applicant submitted that if the court were not inclined to grant to it damages, it can still grant the other relief claimed. His application is three-pronged and severable. Each claim should be considered separately.

In the case of Garlicks Wholesale v Davis 1927 CPD 185 as quoted in Hugo Franco (Pty) Ltd v Gordon 1956 (4) SA 482..., GARDNER JP remarks -

“Summary judgment could only be granted in respect of all the plaintiff's claims in his summons not only such as he selected as the separate subject of summary judgment.”

MURRAY CJ in the Hugo Franco (Pty) Ltd v Gordon 1956 (4) SA 482 case..., continued-

“Prime facie, the plaintiff could have avoided those difficulties if, prior to making its application for summary judgment, it had amended its summons abandoning its alternative claim for the payment of damages and its claim for interests.”

I share the view as expressed above.

Summary judgment procedure is meant to be simple and straight forward. If parties were allowed to amend or sever claims at summary judgment it defeats the whole purpose of having the procedure in place. It is no wonder that an applicant is not allowed to file an answering affidavit in summary judgment proceedings.

The applicant cannot succeed in its quest to have the order severed.

Assuming I am wrong on the point, I will proceed to determine the other issues.

The law of summary judgment is settled in our jurisdiction. It is a drastic remedy in which the plaintiff, whose belief is that the defence is not bona fide and entered solely for dilatory purposes, should be granted immediate relief without the expense and delay of trial. See Chiadzwa v Paulkner 1991 (2) ZLR 33 (5) and Coleman v Sahange SC132-91. It has far reaching consequences as it effectively denies the defendant the benefits of the fundamental principle of audi alteram partem rule. See Nedlaw Investments and Truth Corp Ltd v Zimbabwe Development Bank SC05-00.

It can only be granted to the plaintiff when all proposed defences to the plaintiff's claim are clearly inarguable both in fact and in law. See Chrisnar (Pvt) Ltd v Stutchbury and Anor 1973 (1) RLR 277 G...,.

The defence does not have to establish its defence on the probabilities. All she need allege are facts which disclose a defence. These facts, if pleaded and accepted at the trial, must be sufficient to establish their defence. See Jena v Nechipote 1986 (1) ZLR....,.

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 the year 2009 it granted the first respondent a revolving loan facility of US$50,000=…,.

Of the monies advanced to the first respondent, the amount claimed is outstanding and as at 18 June 2010, the balance stood at US$34,257=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 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$34,257=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….,.

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)…,. and Jena v Nechipote 1986 (1) ZLR 29 (S)…,.

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); and Mining Industry Pension Fund v Banlax and Others HB34-11.

In Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, quoting Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC139-86…, 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$34,257=61, nothing is said about why consent to judgment in that amount has not been filed.

Counsel 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…,;

“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 and Others v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S) 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….,.

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 $38,660=05 together with interest thereon at 30% per annum with effect from the 4^th December 2010 to date of full payment.

(b)…,.

(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 17^th April 1989, is specially executable.

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;

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 20^th 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 20^th 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.

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 23^rd September 2009 to date of payment in full.

Counsel for the applicant strongly argued that it was a gross irregularity for the matter to be set down on short notice thereby failing to accord the applicant sufficient time to prepare his opposition. Order 15 Rule 1(2) of the Magistrates Court (Civil) Rules, 1980 provides:

“An application in terms of subrule(1) (i.e. summary judgment application), shall be made on not less than seven days' notice delivered not more than seven days after the date of the defendants appearance to defend….,.”

In casu, the Messenger of Court's return of service shows that the applicant was served on the 30^th September 2010 which gave the applicant virtually four days' notice instead of the prescribed seven (7) days. Order 15 Rule 1(2) is a peremptory provision by virtue of the use of the word “shall” in that Rule.

Both parties have correctly dealt with the law relating to partnerships and having identified where liability should lie, I see no point in revisiting that area of the law.

The respondent, in casu, has indeed conducted itself in a manner that does not assist it in its alleged defence. In short, the respondent has, in my view, no plausible defence to the applicant's claim and therefore the applicant is entitled to summary judgment. (See Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd HH64-10). I therefore order as follows:-

IT IS ORDERED THAT:

1. Application for summary judgment be and is hereby granted.

2. The respondent shall pay the applicant the sum of USD9,643=20 together with interest thereon at the prescribed rate of 5% per annum calculated from 21 September 2011 to the date of full and final payment; and

This matter involves two separate claims by the applicant as against the same respondent in Case Nos. HC11737/11 and HC279/12. The two claims emanate from the same cause of action and involve the same facts in issue between the same parties. They were accordingly consolidated, by consent, on 19 November 2012 through a chamber application filed under Case No.13310/12.

The applicant's consolidated claim is for summary judgment in Case Nos. HC11737/11 and HC279/12. He seeks the payment of two tranches of US$83,500= each and BUPA medical aid subscriptions in the sum of GB£1,332=92 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Background

The applicant is the former Managing Director of the respondent and a former Director of Meikles Ltd, having resigned from both positions with effect from 30 June 2011. His claim arises from a severance package totalling US$334,000= which was executed on 22 June 2011. The agreement in question was signed by one Brendan Beaumont, representing the respondent in his capacity as Group Chief Executive of Meikles Ltd and being duly authorised thereto. Meikles Ltd owns the entire shareholding in the respondent company. The applicant avers that the respondent has complied with certain aspects of the agreement, relating to payments in lieu of notice and leave and the transfer of the applicant's motor vehicle and cellphone. However, it wishes to resile from the principal element pertaining to severance pay. Its defence, as to the absence of proper authority to conclude the agreement and non-compliance with statute, is merely a dilatory tactic and an abuse of court process.

The respondent accepts that the applicant did report to Brendan Beaumont as his immediate boss. However, it denies that the latter had authority to execute the agreement with the applicant in the absence of resolutions from Meikles Ltd and the respondent authorising him to bind the respondent to the agreement. According to a supporting affidavit from its erstwhile lawyer (now deceased), the agreement was drafted on the instructions of Brendan Beaumont in collaboration with the applicant's counsel herein. Its defence, as per its plea, is that Meikles Ltd is a distinct legal entity quite separate from the respondent company. In any event, the agreement is invalid because of the absence of due authorisation to conclude it and because its principal features would entail non-compliance with certain provisions of the Companies Act.

The applicant avers that Brendan Beaumont, in his several capacities, held himself out to possess the requite authority and that he relied upon that representation. Brendan Beaumont therefore had ostensible authority to bind the respondent to the agreement with the applicant. Moreover, the provisions of the Companies Act which are relied upon by the respondent do not apply to the applicant as an employee who assumed the position of Director due solely to his contract of employment.

Requisites for Summary Judgment

The approach to be adopted in proceedings for summary judgment has been laid down on numerous occasions. All that the defendant need do in order to resist summary judgment is to allege facts disclosing a defence and sufficient to establish that defence; Rex v Rhodian Investments Trust (Pvt) Ltd 1957 R & N 723; 1957 (4) SA 631 (SR)…,. He must show that there is a mere possibility of his success or that he has a plausible case or that there is a triable issue; Jena v Nechipote 1986 (1) ZLR 29 (S)…,. It is only when all the proposed defences to the plaintiff's claim are clearly unarguable, both in fact and law, that the drastic relief of summary judgment may be allowed; Chrismar (Pvt) Ltd v Stutchbury 1973 (1) RLR 277 (GD)…,. In short, the plaintiff's case must be unassailable and unanswerable; Pitchford Investments (Pvt) Ltd v Muzari 2005 (1) ZLR 1 (H)…,.

Relationship between Respondent and Meikles Ltd

It is common cause that the respondent is a wholly owned subsidiary of Meikles Ltd. This is confirmed by the latter's Annual Report of 2011 which deals with the respondent as a subsidiary of the Meikles Group. It is also not in dispute that Brendan Beaumont was the Group Chief Executive of Meikles Ltd, and, as such, the applicant's immediate superior. Nevertheless, it cannot be doubted that Meikles Ltd and the respondent are separate corporate legal entities. The 2011 Annual Report explicitly draws this distinction as between Meikles Ltd and each subsidiary as being decentralised with a formal operating Board and clear definition of responsibility within well-defined policies. Again, the same report refers to and records the applicant's resignation as Executive Director of Meikles Ltd and as a member of its Board but makes no mention whatsoever of his position as Managing Director with the respondent and his resignation from that post.

All in all, it is reasonably clear Meikles Ltd and the respondent are distinct and separate legal entities, each with its own governing Board and executive management. The fact that Meikles Ltd owns 100% of the shares in the respondent company does not, in itself, make the actions of the Meikles Group Chief Executive binding on the respondent.

Authority to Conclude Agreement

Section 12 of the Companies Act [Chapter 24:03] codifies the so-called turquand rule or presumption of regularity in corporate affairs. It provides that any person dealing with a company is entitled to make certain assumptions and that the company is estopped from denying their truth. In particular, it may properly be assumed that the company's internal regulations have been duly complied with. See, in this regard, Wolpert v Uitzigt Properties (Pty) Ltd & Others 1961 (2) SA 257 (W)…, and the authorities there cited.

In terms of section 12 of the Companies Act [Chapter 24:03], it may also be assumed that every person described in the company's register or returns as a director, manager or secretary of the company, and every person whom the company represents to be an officer or agent of the company, has been duly appointed and has authority to exercise the functions customarily exercised by a director, manager or secretary, or by an officer or agent of the kind concerned. However, a person is not entitled to make any such assumptions if he has actual knowledge to the contrary or if he ought reasonably to know the contrary. Section 13 of the Companies Act stipulates that a company shall be bound in terms of section 12 notwithstanding that the officer or agent concerned acted fraudulently or forged a document purporting to be sealed or signed on behalf of the company.

In essence, what these provisions enact, in the corporate context, are the common law rules governing ostensible or apparent authority entitling third parties to enforce contracts concluded with the agents or employees of their principals. See Reed N.O. v Sager's Motors (Pvt) Ltd 1970 (1) SA 521 (RAD); Stewart v Zagreb Properties (Pvt) Ltd 1971 (2) SA 346 (RAD); Seniors Service (Pvt) Ltd v Nyoni 1986 (2) ZLR 293 (S); Mine Consultants and Supply Company v Borrowdale Motors (Pvt) Ltd 1990 (2) ZLR 281 (S).

Counsel for the applicant contends that the benefits of sections 12 and 13 of the Companies Act apply not only to outsiders but also to the Directors of a company, particularly where the termination of their contracts of employment are in issue. He further submits that Brendan Beaumont, by virtue of his position, had ostensible authority to act for the respondent and bind it to the agreement that he entered into on its behalf with the applicant.

Counsel for the respondent submits to the contrary that sections 12 and 13 are not intended for the benefit of any insider who ought to have known of the alleged irregularity.

I fully agree with that submission.

As I have already indicated, section 12 of the Companies Act legislates the rule in Royal British Bank v Turquand (1856) 6 E & B 327; [1843-60] All ER Rep 435. However, it is well-established that the rule does not protect any person, who, by reason of his position within the company, ought to have known of the irregularity in question. See Mahony v East Holyford Mining Co. (1875) LR 7 HL 869…,.; Howard v Patent Ivory Manufacturing Co. (1888) 38 ChD 156; Mineworkers Union v J.J. Prinsloo 1948 (3) SA 831 (A). Moreover, Wolpert v Uitzigt Properties (Pty) Ltd & Others 1961 (2) SA 257 (W) does not establish the broad proposition contended on behalf of the applicant, having regard to what was stated in that case at pp. 264F and 266.

In the instant case, the applicant was clearly not an outsider or mere employee of the respondent, but its Managing Director. He alleges that he was precluded from attending Board meetings of Meikles Ltd and the respondent at the relevant time. Even if this were true, he could quite easily have obtained the minutes of relevant Board meetings so as to ascertain decisions taken concerning his resignation and severance package. In any event, in his position as Managing Director, he must have known that any decision in that regard would require a Board resolution from the respondent authorising Brendan Beaumont to negotiate and conclude his severance package. For these reasons, I take the view that the applicant is not entitled to take advantage of the presumption of regularity embodied in section 12 of the Companies Act.

For the same reasons, I do not think that there is any basis for invoking ostensible authority in relation to Brendan Beaumont's actions. Firstly, the fact that he was the Group Chief Executive of Meikles Ltd does not mean that he had the requisite ostensible authority, by virtue of that position, to negotiate and conclude severance packages on behalf of the respondent. There is nothing in the papers to suggest that he normally exercised that function in that particular capacity. Secondly, as I have already emphasised, the applicant was not some third party dealing with an agent or employee of the respondent. He was its Managing Director, and, given that position, I can see no justification for extending the doctrine of ostensible or apparent authority to the facts of this case.

Application of Companies Act to Validity of Agreement

Section 176 of the Companies Act [Chapter 24:03] prohibits tax-free payments to directors in the following terms:

“(1) It shall not be lawful for a company to pay a director remuneration, whether as director or otherwise, free of any taxation in respect of income, or otherwise calculated by reference to or varying with the amount of such taxation or with the rate of taxation on incomes, except under a contract which was in force on the 1^st January 1952, and provides expressly, and not by reference to the articles, for payment of remuneration as aforesaid.

(2) Any provision contained in a company's articles or in any contract other than such a contract as aforesaid, or in any resolution of a company or a company's directors, for payment to a director of remuneration as aforesaid shall have effect as if it provided for payment, as a gross sum subject to taxation, of the net sum for which it actually provides.”

Counsel for the applicant submits that the sum of US$334,000= payable to the applicant as severance pay in terms of clause 2(c) of the agreement is a net amount after taxation is taken into account. The payment therefore does not contravene section 176 of the Companies Act.

Counsel for the respondent counters that this section applies even if the payment in question is calculated by reference to the rate of taxation.

I entirely agree.

Section 176(1) of the Companies Act is designed to curb the mischief of parties determining the tax element on their own without the approval of the taxman. This construction is fortified by section 176(2) which deems the net sum actually provided for as a gross sum subject to taxation. Furthermore, even the agreed figure of US$334,000= cannot possibly be a net amount after taxation because it includes the sum of US$110,000= as compensation for restraint of trade. It follows that the severance payment stipulated in the agreement is unlawful as being in contravention of section 176(1) of the Companies Act [Chapter 24:03].

Section 178 of the Companies Act [Chapter 24:03] requires the approval of the company for any payment to a Director for loss of office as follows:

“It shall not be lawful for a company to make to any director of the company any payment by way of compensation for loss of office or as consideration for or in connection with his retirement from office, without full particulars with respect to the proposed payment, including the amount thereof, being disclosed to members of the company and the proposal being approved by the company in general meeting.”…,.

Counsel for the applicant contends that this provision merely requires disclosure of any compensatory payment to members of the company and its ratification by a resolution of members at a general meeting. He argues that disclosure is not a prerequisite, particularly as general meetings are only held once every year.

I must emphatically disagree.

Firstly, it is perfectly practicable for severance payments envisaged in section 178 of the Companies Act to be raised at special general meetings of a company, which meetings may be convened at any time to deal with matters arising in the intervening period between Annual General Meetings. Secondly, and more significantly, there is no reference in the provision to any binding agreement being submitted for mere ratification by members. Rather, the provision refers to full particulars of the proposed payment and the amount thereof being disclosed to members and the proposal being approved by the company in general meeting. In my view, the wording of the section makes it unambiguously clear that approval by members is a prerequisite for any severance payment to a Director.

Accordingly, the severance payment in casu, not having been disclosed to the members of the respondent, and not having been approved by them at a general meeting, is patently in violation of section 178 of the Companies Act [Chapter 24:03] and consequently unlawful.

Section 179 of the Companies Act [Chapter 24:03] deals with any payment to a Director for loss of office in connection with the transfer of a company's property. It provides that:

“(1) It shall not be lawful, in connection with the transfer of the whole or any part of the undertaking or property of a company, for any payment to be made by any person to any director of the company by way of compensation for loss of office or as consideration for or in connection with his retirement from office, unless particulars with respect to the proposed payment, including the amount thereof, have been disclosed to the members of the company and the proposal is approved by the company in general meeting.

(2) Where a payment which is hereby declared to be illegal is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.”

As became apparent at the hearing of this matter, this section has no bearing whatsoever on the facts of this case. It deals with any payment made to a Director by a person other than the company itself in connection with the transfer of its undertaking or property, presumably to that person or some other party. I would simply note that section 179(1), like section 178, requires the prior approval of members at a general meeting as a precondition for any compensatory payment envisaged in the provision.

Lastly, there is the rather curious argument put forward by counsel for the applicant that the above provisions do not apply to the applicant because he first joined the respondent in 1993 as its General Manager and was then appointed to the position of Managing Director in November 2003. Therefore, so counsel for the applicant contends, as the applicant was only appointed to the respondent's Board as a Director by virtue of his contract of employment as Managing Director, he was an employee at the time of his resignation and not a Director.

This contention is categorically facile and spurious in the extreme. It is plainly obvious that when the applicant was appointed as Managing Director he was appointed to an entirely new post. As from November 2003 he was no longer an employee but indisputably a Director within the contemplation of sections 176, 178 and 179 of the Companies Act [Chapter 24:03].

Bona Fide Defence and Triable Issues

It is abundantly clear from all of the foregoing that the respondent has several bona fide defences to the applicant's claim. These pertain to its relationship with Meikles Ltd and its Group Chief Executive, the latter's authority to conclude the agreement relied upon by the applicant, and the validity of that agreement under sections 176 and 178 of the Companies Act. By the same token, it is equally clear that the plaintiff's case is not unassailable and unanswerable.

There is also the point that the issue of ostensible authority contended on behalf of the applicant, if it is at all arguable in the context of this case, is essentially a question of fact to be determined by viva voce evidence. See Reed N.O. v Sager's Motors (Pvt) Ltd 1970 (1) SA 521 (RAD)…,.; and Stewart v Zagreb Properties (Pvt) Ltd 1971 (2) SA 346 (RAD)…,. This, together with the defences raised by the respondent, constitute triable issues to be properly ventilated in a trial.

Disposition

As regards costs, I note that the applicant brought this application some seven weeks after the respondent had filed its plea. He was fully aware of the defences raised and must have appreciated that an application for summary judgment was improper and bound to fail. In these circumstances, and in terms of Rule 72, it seems just and appropriate that the respondent be awarded the costs of this application and that these costs be paid before the matter proceeds any further.

In the result, the application for summary judgment is dismissed with costs. It is further ordered that the main action be stayed until the applicant has paid the respondent's costs relative to this application.

This is an application for summary judgment against the three respondents who are the defendants in case no. HC8904/10 (hereinafter referred to as “the main matter” or “the action”). The applicant is the plaintiff in the main matter, in which it instituted proceedings for the ejectment of the respondents from the Assistant Manager's house at Good Hope Farm…..,.

Summary judgment is allowed where the applicant has a clear and unassailable case and ought not be subjected to the expense and delay of going to trial. It is a drastic remedy. The remedy is intended to “prevent sham defences from defeating the rights of parties by delay, and at the same time causing great loss to plaintiffs who were endeavouring to enforce their rights.” Joob Joob Investments v Stocks Mavundla Zek 2009 (5) SA 1…,.; See also Beresford Land Plan (Pvt) Ltd v Urquhart 1975 (1) ZLR 260…,; Pitchford Investments (Pvt) Ltd v Muzari 2005 (1) ZLR 1 (H)…,; Majoni v Minister of Local Government and National Housing 2001 (1) ZLR 143 (S)….,. 

In order to successfully oppose an application for summary judgment, a defendant must show a good bona fide defence to the plaintiff's claim. In other words, the defendant must raise an issue which, if proved at trial, would entitle him or her to succeed. See Niri v Coleman & Ors 2002 (2) ZLR 580 (H)….,. The defendant is not expected to establish his or her defence on the probabilities, but must set forth the grounds of defence with sufficient detail to enable the court to conclude that he has a bona fide defence and that the opposition has not been filed solely for the purposes of delay. See Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC139-86….,; Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd 2010 (1) ZLR 227 (H)…,. 

The applicant issued summons claiming payment of the sum of US$15,900=, interest on the amount at the prescribed rate and costs of suit on attorney-client scale.

The respondent entered an appearance to defend.

The applicant then applied for summary judgment.

The basis for the application is that the applicant was an employee of the respondent. Upon reaching retirement age, the parties agreed on the retirements benefits due to the applicant in the sum of US$15,900=. The parties signed a letter to the effect that the respondent would pay the above-stated amount on or before 14 October 2011. The respondent did not pay and the applicant then issued summons. It is the applicant's contention that its claim is unanswerable and the respondent entered an appearance to defend solely for purposes of buying time.

This is an application for a summary judgment.

The applicant is a duly registered commercial Bank carrying on a business under the name and style of Agricultural Development Bank of Zimbabwe t/a Agribank. The first and second respondents are farmers carrying on business from sub-division 4 of Lot 4 of Sherwood, Kwekwe.

On or about the 27^th October 2009, at the special instance and request of the first and second respondents, the applicant advanced a sum of $52,827= to the respondents under the following terms and conditions:

(1) The advanced loan was a sum of $52,827=;

(2) It was to be used as working capital for farming operations;

(3) The loan was to be repaid on or before the 30^th June 2012;

(4) The prescribed rate of interest was to be paid only in the event of the respondents' failure to repay the said loan in full by the 30^th June 2012;

(5) The loan was to be secured by a Mortgage Bond in favour of the 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 the 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….,.

The respondents have since breached the Loan Agreement. On the 29^th April, the applicant issued out summons against the respondents which summons they defended on the 17^th May 2011.

It is that defence which has led to the present application.

This is an application for summary judgment where in the plaintiff claims the following;

(i) Payment of the sum of US$30,763=50.

(ii) Interest on the sum of $30,763=50 at the prescribed rate per annum from 23 August 2012 to the date of payment in full.

(iii) 2.5 % collection commission in the sum of US$5,600=00.

(iv) Liquidated damages in the sum of US$5,600=00.

(v) Costs of suit on a legal practitioner and client scale….,.

The application for summary judgment was opposed on the following grounds:

(c) That the applicant breached the second Agreement which commenced on 1 February 2012 by its failure to flight “new advertisement materials” on the billboards. Consequently, the amount due and payable to the applicant has always been in dispute. This dispute arises from the applicant's failure to display the respondent's materials on its billboard at site NO.HAR0012. Such failure disentitles the applicant from claiming the full rental for the month of July 2012.

(d) That the respondent has a strong bona fide case…,.

As regards the contention that the amount due and owing has always been in dispute, it is necessary and instructive to closely examine the undisputed facts or those incapable of denial. These are;

(1) The applicant and respondent entered into two written Billboard Advertising Rental Agreements whereby the respondent rented four (4) of the applicant' billboards in order to display the respondent's advertisements as follows;

(a) The first agreement commenced on 1 September 2011 and was to expire on 31 August 2012 and was for the rental of the following sites;

(b)(i) Site No.HAR 0024.

(ii) Site No.HAR 0012.

(c) The second agreement commenced on 1 February 2012 and was to expire on 31 December 2012. It was for the rental of Site No.HAR 0415 and HAR 0484.

(2) In total breach of its obligations, the respondent failed to make payment of the rental charges owed to the applicant in terms of these Agreements resulting in the respondent accumulating arrears in the total sum of US$27,933=50 as at June 2012. On 26 June 2012, the applicant wrote to the respondent requesting an urgent meeting to discuss payment of this debt. On 17 July 2012, the respondent acknowledged the sum due to the applicant i.e $27,933=50 and proposed a payment plan of US$6,000= per month commencing 31 July 2012 – see Annexure E on page 18 of the record.

(3) The respondent's payment plan was accepted by the applicant and as the billboard site NO HAR 0012 had been undergoing renovation since 1 July 2012, the respondent's material remained flighted on three of the applicant's billboards at sites HAR0024, HAR0415 and HAR0484 respectively. Further rental charges for these billboards in the sum of US$805= per billboard per month accrued for the months of July and August 2012.

(4) The respondent defaulted on its undertaking to make payment of US$6,000-00= by 31 July 2012 and as at 1 August 2012 rental arrears in the sum of US$32,763=50 were outstanding as follows;

(a) US$27,933=50 outstanding as at end of June 2012;

(b) Rental charges in the sum of US$805= for billboard per month for three bill boards for the month of July 2012, in the total sum of US$2,415=; and

(c) Rental charge in the sum of US$805= per billboard per month for three billboards for the month of August 2012 in the total sum of $2,415=.

The respondent made one payment of US$2,000= reducing the debt to the sum of US$30,763=50 – see Annexure F on p19 of the record. The respondent then refused or failed to make any further payments resulting in the applicant cancelling the second Agreement by letter dated 23 August 2012. The first Agreement expired on 31 August 2012 and was not renewed by the applicant.

(5) The applicant issued summons and declaration which were delivered upon the respondent on 6 November 2012. The respondent entered an appearance to defend through its legal practitioners.

From the above chronology, it is clear that the July 2012 rental for billboard on site No.HAR 0012 does not constitute part of the debt claimed as due and owing by the applicant. For that reason, I find that the third ground for opposing the application for summary judgment is indeed a subterfuge that of necessity must meet its inevitable fate, namely, its paralysis. The argument collapses because, in my view, it does not make mathematical sense at all. Consequently, the argument that the respondent has no bona fide defence is sustainable in so far as the first component of the debt, relating to rental charges, is concerned.

The applicant has not said anything about the second component of the debt, namely, the liquidated damages.

All I can say is that in terms of the second Agreement the applicant is entitled to claim liquidated damages equal to the monthly rental for two billboards in the total sum of $1,400= per month payable from the date of termination of the Agreement being, 23 August 2012, to the date of the expiry of the Agreement, being 31 December 2012. The total amount which is readily ascertainable under this head is $5,600=.

For the respondent to succeed it must satisfy the requirements set by ZIYAMBI JA in the Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) case where it was stated that:

“In summary judgment proceedings, not every defence raised by a defendant will succeed in defeating a plaintiff's claim. What the defendant must do is to raise a bona fide defence, or a plausible case, with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. The defendant must allege facts which, if established, would enable him to succeed. If the defence is averred in a manner which appears in all circumstances needlessly bald, vague or sketchy, that will constitute material for the court to consider in relation to the requirement of bona fides. The defendant must take the court to 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 casu, the respondent has failed to establish that it has a bona fide defence to the claim.

Accordingly, it is ordered that:

(i) Respondent pay to applicant the capital sum of US$30,763=50.

(ii) Respondent pay to applicant interest on the capital sum at the prescribed rate per annum from 23 August 2012 to the date of payment in full.

(iii) Respondent to pay to applicant liquidated damages in the sum of US$5,600=.

The applicant averred that the application for summary judgment is not likely to succeed because it contains disputes of fact which are only suitable of resolution by way of action. Some of those disputes are that the quantum of the applicant's indebtedness is not clear and the question of whether the respondent had been authorized by the applicant's Board of Directors to advance monies to the applicant. 

It is alleged that these disputes are incapable of resolution on the papers filed of record….,.

The respondent vigorously denied that its application for summary judgment was bad at law and that it was not likely to succeed on the papers before the court. Under case number HC11294/11, the respondent, in the application for condonation that the court has disposed of above, Mr. Roly Corbett, was the applicant, and Zimplastics (Private) Limited was the respondent. Mr. Corbett deposed to the founding affidavit and stated that on 26^th August 2011 he had caused summons to be issued under case number HC8359/11, against Zimplastics (Private) Limited, for payment of US$78,998=88 (seventy eight thousand nine hundred and ninety eight United States dollars and eighty eight cents), being an amount due and payable to him by Zimplastics (Private) Limited in respect of monies loaned and advanced to Zimplastics (Private) Limited, at Zimplastics (Private) Limited's special instance and request; which monies remained outstanding, together with interest thereon at the prescribed rate, collection commission and costs of suit.

Zimplastics (Private) Limited entered appearance to defend the matter on 8 September 2011.

The applicant, Mr. Corbett, believing that Zimplastics (Private) Limited did not have a bona fide defence to his claim, and that it had entered appearance to defend only for purposes of delaying the proceedings and postponing the date of payment, applied for summary judgment.

Mr Corbett averred, in his founding affidavit, that he had a clear and unassailable case against Zimplastics (Private) Limited; that Zimplastics (Private) Limited had no bona fide defense; and that Zimplastics (Private) Limited entered appearance to defend purely for purposes of delay. The applicant stated that it loaned and advanced monies to the respondent during the period February 2009 to February 2011, in various sums amounting to US$78,998=99, which sum became due and owing as at February 2011.

According to Mr Corbett, Zimplastics (Private) Limited acknowledged its indebtedness to him through the medium of a letter dated 12 July 2011. The applicant, Mr Corbett, sought the following order:

1. Summary judgment in case number HC8359/11 is granted in favor of applicant and against respondent in the sum of US$78,998=88, together with interest thereon at 5% per annum calculated from 28 February2011 to the date of payment.

2. Respondent shall pay collection commission on the said sum in terms of the law-society Tariff.

3. Respondent shall pay costs of suit on the scale of legal practitioner client.

Zimplastics (Private) Limited opposed the application for summary judgment in its opposing papers dated 25 November 2011. The basis of the opposition was that the loans allegedly advanced to it were never approved by its Board of Directors, that Mr Corbett was the Zimplastics (Private) Limited's  Managing Director during the relevant period and had an interest in the respondent in that capacity and therefore could not have advanced such monies to Zimplastics (Private) Limited without authorization. Zimplastics (Private) Limited averred that, as a public company listed on the Zimbabwe Stock Exchange at the time, it is improbable that Mr Corbett loaned monies to his employer, rather, the evidence shows that Mr Corbett was running a parallel business which he ran in competition with his employer. Zimplastics (Private) Limited denied acknowledging indebtedness to Mr Corbett as claimed. Zimplastics (Private) Limited averred that there are material disputes of facts as to whether the loans were sanctioned by the Board of Directors. According to Zimplastics (Private) Limited, this constitutes a bona fide defence because if the monies were advanced illegally, the respondent would not be liable to repay.

Mr Corbett countered Zimplastics (Private) Limited's averments by stating that the loans were approved by a Mr. C. R. Maradza in his capacity as Finance Manager of Zimplastics (Private) Limited. He denied that the Board of Directors were ignorant of the loan and stated that the Board of Directors was constantly changing but Mr. Maradza remained with Zimplastics (Private) Limited for a long time. Mr Corbett denied that there were any material disputes of fact which rendered this matter incapable of resolution on the papers filed of record. He attached minutes of Board meetings to show that the Board was aware of the fact that he was loaning the respondent monies.

The Summary judgment procedure is set out in Order 10 Rule 64 of the High Court Rules 1971 as follows:

“(1) Where the defendant has entered appearance to a summons, the plaintiff may, at any time before a pretrial conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs.

(2) A court application in terms of subrule (1) shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defense to the action.”

The purpose of the relief of summary judgment is to enable a plaintiff with a clear case to obtain swift enforcement of its claim against a defendant who has no real defense against the claim. See Oak Holdings v Chiadzwa SC136-85.

A plaintiff seeking summary judgment must bring itself squarely within the ambit of Rule 64. See Shingadia v Shingadia 1966 RLR 285 (G)…, and Bank of Credit & Commerce Zimbabwe Ltd v Jani Investments (Pvt) Ltd 1983 (2) ZLR 317 (H)…,. In other words, the plaintiff's claim must be clear and unassailable as it is set out in the summons and declaration and verified in the founding affidavit.

"Accordingly, summary judgment should not be granted when any real difficulty as to matters of law arises, but it has been held that, however difficult the point of law is, once the court is satisfied that it is really unarguable, judgment will be granted." Shingadia v Shingadia 1966 RLR 285…,; 1966 (3) SA 24 (R)…,.:

This passage was cited with approval in Rheeder v Spence 1977 (2) RLR 263…,; 1978 (1) SA 1041 (R)…,.. In Chrismar (Pvt) Ltd v Stutchbury 1973 (1) RLR 277 (GD), BECK J said…,:  

"…, it is well established that it is only when all the proposed defenses to the plaintiff's claim are clearly unarguable, both in fact and in law that this drastic relief will be afforded to a plaintiff."

The plaintiff's claim in the pleadings (summons, declaration, founding affidavit) must be unanswerable. See Central Africa Building Society v Ephison Simbarashe Ndahwi HH18-10.

The founding affidavit must confirm the facts of the case and confirm the cause of action and contain an averment that the respondent has no bona fide defence and had entered appearance to defend solely for purposes of delaying the finalization of the matter. See Chindori-Chininga v National Council Negro Women 2001 (2) ZLR 305, Beresford Land Plan (Pvt) Ltd v Urquahart 1975 (3) SA 615.

The respondent must establish that it has a good prima facie defence.See Hales v Doverick Investment (Pvt) Ltd 1998 (2) ZLR 235.

The respondent must not be content with vague generalities and conclusory allegations. See District Bank Limited v Hoosain and Others 1984 (4) SA 544.

In Mbayiwa v Eastern Highlands Motel SC139-86 the court stated that:

“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 with sufficient clarity and completeness to enable the court to decide a bona fide defence.”

In Jena v Nechipote 1986 ZLR 29 (SC) the court stated that…,:

“All the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that `there is a mere possibility of success'; `he has a plausible case'; 'there is a real possibility that an injustice may be done if summary judgment is granted.'”

The applicant issued summons in this court claiming $11,001=88 from the respondent. The latter entered appearance to defend and the former applied for summary judgment.

The facts are that between 2010 and 2011, Fleximail, a division of ART Corporation Ltd, sold and delivered stationery on credit to the respondent. Fleximail has an insurance policy with the applicant under policy number DSCNB 11115. On 26^th of January 2012, Fleximail ceded its right, title and interest in its claim (for any divided or other payment which may accrue to it from the respondent) to the applicant. The cession of dividend was reduced to writing and signed by the insured (cedent) and the insurer (cessionary) who is the applicant in this matter. The document appears on p9 of the record.

The applicant's claim against the respondent is supported by several invoices referred to in its founding affidavit…..,.

The respondent's grounds for opposing the matter are as follows:

(i) The invoices are not conclusive proof of delivery of goods since they were raised by the cedent. These invoices show a total of $11,297=77 yet the amount claimed in the summons is US$11,001=88.

(ii) The respondent has always disputed the extent of indebtedness and requested delivery notes so that a reconciliation of its account can be done.

(iii) The respondent has a good defence at law in that the applicant has not fully indemnified the cedent's claim for US$10,000=. Thus, the applicant has no right to sue until it has fully compensated the cedent. Further, the applicant is “not entitled at law to sue for more than it has reimbursed to the cedent” that is US$8,000= since its claim is based on subrogation.”

(iv) The document relied upon by the applicant as a cession is not actually a cession. Even assuming it to be one clause 8 thereof does not help the applicant.

The respondent relied on the following cases:

(a) Chrismar (Pvt) Ltd v Stutchburg & Anor 1973 (1) RLR 277;

(b) Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H); and

(c) Shingadia v Shingadia 1966 (1) RLR 285.

On the other hand, the applicant's case is that its application for summary judgment is substantiated by proof and its claim is unimpeachable. Further, it was submitted that the respondent's defence that the applicant has not fully indemnified the cedent is mala fide as it has no bearing on the applicant's claim against the respondent. Therefore, the respondent entered appearance to defend for the purposes of delaying proceedings. The respondent's request that it be furnished with delivery notes after being provided with copies of various invoices that relate to the goods delivered and amount owed is a clear delaying tactic. The applicant also relied on the Chrismar (Pvt) Ltd v Stutchburg & Anor 1973 (1) RLR 277 and Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H) cases.

The applicant's application is one for summary judgment in terms of Rule 64 of the High Court Rules, 1971. In such applications, the respondent must prove that he has a bona fide defence. What amounts to a bona fide defence was stated by DE VILLIER JP in Bentley Maudesley & Co (Pty) Ltd v Carburol (Pty) Ltd 1949 (4) SA 873 as “a bona fide defence means a defence set up bona fide or honestly and which if proved will constitute a defence to the plaintiff.”

In Rex v Rhodian Investments Trust (Pvt) Ltd 1957 R & N 723 (SR), the yardstick was put as “a prima facie defence” defined as “good prima facie defence means that the defendant must allege facts which if he can succeed in establishing them at trial would entitle him to succeed in his defence.” Further, the purpose of this special procedure was explained in the Chrismar (Pvt) Ltd v Stutchburg & Anor 1973 (1) RLR 277 case in the following words;

“The special procedure for summary judgment was conceived so that a mala fide defence might summarily be denied except under onerous conditions, the benefit of the fundamental principle on audi alteram partem (principle of natural justice to hear both sides of the case) so extraordinary an invasion of a basic tenet of natural justice will not lightly be resorted to, and it is well established that it is only when all the proposed defences to the plaintiff's claim are clearly unarguable both in fact and in law that this drastic relief will be afforded to a plaintiff.”

The onus to satisfy the court that he has a good prima facie defence is on the respondent – see the Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H) case where it was held that…,:

“Where a plaintiff applies for summary judgment against the defendant and the defendant raises a defence, the onus is on the defendant to satisfy the court that he has a good prima facie defence. He must allege facts which if proved at the trial would entitle him to succeed in his defence at trial…, he must set out the basis for his defence with sufficient clarity and in sufficient detail to allow the court to decide whether if these facts are proved at the trial, this will constitute a valid defence to the plaintiff's claim. It is not sufficient for the defendant to make vague generalizations or to provide bald and sketchy facts.”

Applying these principles to the facts, it must be noted that the cause of action arises from a cession of dividends. “Two of the essentials of a valid cession are an intention to make over to another what belongs to oneself in order that it may in future belong to that other and not to oneself, and in addition delivery or some legal formality equivalent thereto.” Per MAARSDORP CJ in Wilcocks N.O. v Visser & Anor 1910 O.P.D. 102. 

Cession is a way of transferring incorporeal rights and it need not take a particular form.

This summary judgment application graphically illustrates that a trend is fast developing among business people in this country to borrow huge sums of money from financial institutions and when the time to pay comes, to pay as little as possible, or better still, not to pay at all. A pattern is manifesting itself where business people will stop at nothing in avoiding to pay legitimate claims and in the process play havoc to investor confidence.

BARTLETT J put it very succinctly in Industrial Equity Ltd v Walker 1996 (1) ZLR 269 (H)…, when he said:-

“Things that go round come round. Walker has had a merry dance. But he would, to my mind, be well advised to realise that the music has stopped and the time has come to pay the piper. Although with Walker's determination to divest himself of all things executable, I fear that the dance is not yet over – and that it won't be long before the pipes are calling again and the last waltz begins.”

On 19 July 2011, the applicant extended an overdraft facility to the first respondent which was signed for by the second and third respondents in terms of which the first respondent would be advanced a sum not exceeding US$50,000=. The second, third and fourth respondents signed unlimited guarantees binding themselves as sureties in solidium for the due and punctual repayment on demand of all sums of money due by the first respondent.

Although money was drawn in terms of the facility to the tune of $51,500=45, the first respondent failed to service it resulting in the applicant terminating the facility and demanding immediate payment of the amount due. In response to the demand, the first respondent, again represented by the second, third and fourth respondents, wrote two (2) letters acknowledging indebtedness. In the letter of 5 March 2012 they stated:

“REF: BancABC FACILITY NUMBER A13766 FOR USD50,000=

We acknowledge the above facility and would want you to note that P.W.C. Motors P/L is willing to and able to pay US$1,000= (one thousand United state dollars) per month towards the balance that we owe BancABC.”

The respondents wrote another letter acknowledging the debt on 12 March 2012. They stated as follows:-

“REF: BancABC FACILITY NUMBER A13766 FOR USD50,000=

We acknowledge the above facility and would like to assure you of our commitment to pay it off as urgently as we can. Our Managing Director has put up his residential property (with Deeds) for sale and proceeds from that will be used to offset our debt with the bank. We are very keen to maintain our business with BancABC and we will channel all our transactions through them. We thank them for their continued support and we apologise for our account's non-performance but we trust that they will be patient with us regarding this matter.

Yours faithfully

P. Mare – Managing Director

W. Mare – Director

C. Mare – Director”

It would appear that the respondents underwent some dramatic metamorphosis from the position proclaimed in the above correspondence because when the applicant issued summons claiming the outstanding sum of $47,460=, they promptly entered appearance to defend and requested a whole array of further particulars.

Believing that the respondents did not have a bona fide defence to the claim in light of the provisions of the facility document they signed and the obviously unequivocal acknowledgement of indebtedness contained in the letters I have cited above, the applicant filed this court application for summary judgment….,.

Luckson Pfukwa, the Head of Credit of the applicant confirmed the cause of action as being the overdraft facility and the mortgage bond registered against Stand 5246 Mutare Township.

The application is opposed by the respondents….,.

On the merits, the respondents insisted that there are material disputes of fact which should be determined at the trial. They demanded that the applicant must prove the actual amount due, the legality of the interest claimed and also justify the fees levied.

The respondents also insisted that certain amounts of money were paid to the applicant which were not taken into account in arriving at the amount claimed. They attached receipts totalling $830= for payments of $100= instalments made between 2 March and 31 March 2012….,.

On the merits, the applicant is standing on firm ground having produced the facility document signed by the respondents and the mortgage bond, which is, itself, an acknowledgement of debt. In addition, letters written by the respondents admitting liability have been produced. In order to succeed in defeating a summary judgment application the respondents must disclose a defence and material facts upon which that defence is based with sufficient clarity and completeness so as to persuade the court that if proved at the trial such facts will constitute a defence to the claim: Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…,. As stated by ZIYAMBI JA in Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…, -

“Not every defence raised by a defendant will succeed in defeating a plaintiff's claim for summary judgment. Thus, what the defendant must do is to raise a bona fide defence – a 'plausible case' – with 'sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence'. He must allege facts which, if established, 'would entitle him to succeed.' See Jena v Nechipore 1986 (1) ZLR 29 (S); Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC139-86; Rex v Rhodian Investments Trust ( Pvt) Ltd 1975 R & N 723 (SR).

If the defence is averred in a manner which appears in all circumstances needlessly bald, vague or sketchy that will constitute material for the court to consider in relation to the requirement of bona fides. See Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) at 228D-E.

The defendant 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', See District Bank Ltd v Hoosain & Others 1984 (4) SA 544 (C) at 547G-H; Mbayiwa v Eastern Highlands Motel (Pvt) Ltd – supra; Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H).”

The respondents do not even begin to satisfy the criteria set out above. All that they have done in the opposing affidavit of the second respondent, is place in issue, without more, the actual amount claimed, and, indeed, the penalty fees. Yet all the claims have been supported by documentation including the facility document and the in duplum schedule showing how the amount claimed is arrived at….,.

Counsel for the applicant made reference to the remarks of ROBINSON J in Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H)…, which I subscribe to, where the learned Judge said:-

“Businessmen beware. If you fail to honour your contracts then don't start crying, if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.”

I find it utterly deplorable that business people are very quick to receive money from banks undertaking to repay on certain terms. When they have expended the money and enjoyed the benefits they cry foul when the lender demands its dues. We cannot allow a situation where business people grab loans and then refuse to pay. As they say, the time to pay the piper has come. I have taken into account the sum of $830= paid after computation of the debt. In the result, I make the following order; that

1. Summary judgment be and is hereby entered in favour of the applicant against the respondents, jointly and severally, the one paying the others to be absolved, in the following;-

(a) The sum of US$46,630= being the balance on the overdraft facility entered into between the parties on 19 July 2011.

(b) Interest on the sum of US$46,630= at the rate of 44% per annum from 5 June 2012, the date of service of summons to date of payment.

At the hearing of this matter, I granted the order for summary judgement and advised the parties that written reasons will be supplied upon request. Such a request has been made and these are they.

I can do no better than by starting with a quotation by MATHONSI J in a summary judgement application involving the present applicant viz African Banking Corporation of Zimbabwe Limited Ltd v PWC Motors (Pvt) Ltd and 2 Others HH123-13:

“This summary judgment application graphically illustrates that a trend is fast developing among business people in this country to borrow huge sums of money from financial institutions and when the time to pay comes, to pay as little as possible, or better still, not to pay at all. A pattern is manifesting itself where business people will stop at nothing in avoiding to pay legitimate claims and in the process play havoc to investor confidence.”

BARTLETT J put it very succinctly in Industrial Equity Ltd v Walker 1996 (1) ZLR 269 (H)…, when he said:-

“Things that go round come round. Walker has had a merry dance. But he would, to my mind, be well advised to realise that the music has stopped and the time has come to pay the piper. Although with Walker's determination to divest himself of all things executable, I fear that the dance is not yet over – and that it won't be long before the pipes are calling again and the last waltz begins.”

On  9 January 2012, the applicant issued summons out of this court claiming payment of the sum of $154,922= together with interest on the sum at the rate of 50% per annum from 1 January 2012 up to the date of payment in full and costs and commission. They also sought an order that the defendant's immovable property, being Stand 410, Bulawayo Township Lands held under Deed of Transfer No. 980/2006, be declared executable.

The claim was based on an acknowledgement of debt signed by the respondent accepting liability in the amount claimed together with interest.

The respondent entered appearance to defend.

The applicant then filed the present application on the basis that it was its belief that the respondent has no defence and had filed the present application for purposes of delaying finality in the matter.

This is a court application for summary judgment.

The first respondent is a subsidiary of the second respondent. In January 2013, the plaintiff and the first defendant entered into an agreement wherein the former hired out its excavator, Komatsu Grader, and Tipper trucks to the latter on agreed rates. Consequent upon the agreement, the plaintiff supplied its machinery to the first defendant for the period January 2013 to May 2013. Payment was due within seven days of each invoice being issued. The first defendant neglected payment and this caused the plaintiff to issue summons against both defendants jointly and severally, the one paying the other to be absolved, claiming a total sum of $130,290=. The relevant invoices marked annexures “A” to “H” were attached to the plaintiff's declaration.

The defendants contested the suit.

In their plea, while admitting that the machinery was indeed supplied, they disputed that the invoices reflect the correct work and amount and also that the letter dated 20 May 2013 does constitute “a proper a (sic) legal undertaking by the second defendant to bind itself jointly and severally as a co-principal debtor.”

Following this plea, the plaintiff launched this application for summary judgment.

There is a plethora of case law authorities dealing with this subject of summary judgment. In Roscoe v Stewart 1937 CPD 138 it was held that the procedure of summary judgment was intended to eliminate bogus defences and defences which are obviously bad in law and have no substance or merit.

Summary judgment was, in the case of Shingadia v Shingadia 1966 (3) SA 24 (R), described as “an extraordinary, stringent and drastic remedy in that it closes the door in final fashion to the defendant and permits a judgment to be given without a trial.” 

And, in Hughes v Lotriet 1985 (2) ZLR 179 (H) it was stated that though the applicant's claim need not be unanswerable his claim must be unimpeachable.

The locus classicus on this procedure is Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (AD)…, where CORBETT JA said:

“Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court, by affidavit, that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material alleged by the plaintiff in his summons or combined summons, are disputed or new facts are alleged constituting a defence, the court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of one party or the other. All that the court enquires into is:

(a) Whether the defendant has 'fully' disclosed the nature and grounds of his defence and the material facts upon which it is founded; and

(b) Whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.”

Simply put, in the instant case, has the applicant/plaintiff shown to the satisfaction of the court that it has a clear case against the respondents/defendants which the latter cannot possibly answer?

The plaintiff's annexures “A” - “G” are very detailed. 

They are all directed to the first defendant for the attention of Mr P. Muzamba. Each invoice describes the number of days a particular product/equipment was hired out to do work at the second defendant's Victoria Falls and or Binga road construction sites with the weeks hired out being specified, the unit price and the total amount clocked, and less part payments made, where applicable. Each invoice also indicates at the bottom that it was verified and sent for payment by the first defendant's Project Manager, M. Muchetu, who appended his signature thereon. Annexure “H” is the statement of account encompassing all the invoices totaling $130,290= addressed to the first defendant for the attention of Mrs Miriam Sibanda.

Annexure “I” is written on a document bearing the second defendant's letterhead addressed to the plaintiff by a bookkeeper named G. Mukobvu dated 20 May 2013. It reads:

“RE: ARREARS PAYMENT

I refer to the above subject.

We acknowledge our arrears but due to our cash flow challenges we would like to advise that it will be settled soon. Please refer to the attached letter to confirm our anticipation. We pray that you find our communication in order.”

Of note here is that that letter was written on 20 May 2013, some seven days following the date of the last invoice for $30,800= dated 13 May 2013. Before that, there have been some e-mail correspondence between the parties.  Annexure “J” is an e-mail to the following effect:

“Subject: Re: Amt in arrears

From: gmukobvu@twalumba.co.zw

Date: Tue, April 30, 2013 2:17pm

To: “peppergrinder01@yahoo.com

Cc: twalumbaholdings@gmail.com

Hie,

I acknowledge receipt of your correspondence with reference to the above subject.

It is in this regard that we are busy working out a payment plan so as to settle our arrears.

The proposal will be sent to you soon.

We are, however, grateful to you for the service you rendered the group and we hope our proposal will meet your optimum consideration.”

Annexure “K” is another email saying:

“From: miriam.sibanda<Miriam.sibanda@yahoo.co.uk

To: peppergrinder01@yahoo.com

Cc: gmukobvu@twalumba.co.zw

Sent: Wednesday, May 8, 2013 11:10 am

Subject: Payment Plan by Twalumba Civils to Peppergrinder

Dear Mr Utete

Sincere apologies for the tardiness. I had assigned our bookkeeping, Mr Mukobvu, to e-mail you our proposed payment plan. Nevertheless, we should pay you $5,000= (five thousand United States dollars) by next week when a payment we are expecting from ZINARA comes through. Thereafter, I should be able to pay at least a similar amount or more depending on the turnaround time of our claims per month.

I will be e-mailing the deposit slips to you with each payment.

Thank you for your patience. I will personally ensure that the payment is settled in the shortest possible time.”

On May 14, 2013, the plaintiff had e-mailed Miriam Sibanda, copying the e-mail to Mukobvu, saying:

“…,. Please find attached, copies of our March and April invoices for the hired equipment as per my telephonic conversation with Mr Mukobvu. The hard copies were given to your Project Manager, Mr Muchetu. Please be reminded of the payment you promised us mid- this week. I trust it will come through before Friday.”

Thereafter, on 5 June, 2013 Mukobvu sent this email to the plaintiff:

“Hie Mr Utete

We are working flood (sic) out to sort out your payment by Friday this week. Please bear with us as we are anticipating payment. The ZINARA pple said that they want to inspect the project first before processing payment. We are just anticipating.”

From the foregoing, I have no doubt, whatsoever, in my mind that the plaintiff has shown that it has a clear case against both defendants in the sum of $130,290=. Its claim is unanswerable and it is for work that was done, as shown on the invoices annexures “A” - “G”and also on annexure “H”.  Annexures “A” –“G” show work that was done and not to be done. The work done and the amounts charged for it were signed for by Mr M. Muchetu who is the second defendant's Project Manager.

This person did not file any affidavit disputing that the work reflected on the invoices alluded to supra as having been done was not done, or was partly done, or averring that the amounts reflected thereon were quotations.

In their plea, the defendants never stated that the amount owing is $45,040=. That amount was only broached for the first time in the opposing affidavit.

In all the correspondence alluded to above wherein the arrears were admitted owing, and payment plan proposed, there was neither a denial of the amount of $130,290= nor a partial admission that only $45,040= was owed. By 20 May 2013, all the invoices totaling $130,290= had been compiled and transmitted to the defendants. They were therefore aware that the arrears the plaintiff was talking about, and the arrears the defendants were acknowledging owing, related to the $130,290=. It is therefore an afterthought for the defendants to change goal posts only in the notice of opposition to start alleging that the plaintiff's invoices were quotations for work to be done or that only $45,040= was owing. 

This cannot ever amount to a bona fide defence at all….,.

The defendants were supposed to not only disclose the nature of the defence relied upon to resist the plaintiff's claim but set out the material facts on which that defence is based in a manner that is not inherently or seriously unconvincing. This they dismally failed to do.

In the event, it is ordered that summary judgment be and is hereby granted against the defendants jointly and severally, the one paying the other to be absolved in the following terms:

a) Payment of $130,290= being outstanding hire charges for the plaintiff's machinery;

b) Interest on the amount of $130,290= at the rate of 5% per annum from the date of summons to date of full payment; and

This is an appeal against the whole judgment of the High Court handed down on 4 September 2013.  In terms of this decision, summary judgment was entered in favour of the respondent for the eviction of the appellants from its premises, St Tropez Apartment Block, Samora Machel Avenue East, Eastlea, Harare....,.

The second ground of appeal is that the court a quo erred in dealing with the matter on the merits under circumstances in which the Registrar had not declined the bonds of security placed before him which it was his duty to determine on the date of the hearing of the matter.

In terms of Rule 66 of the High Court Rules, upon the hearing of an application for (summary) judgment under Rule 64, the defendant has two options. He may:-

(a) Give security to the satisfaction of the Registrar to satisfy any judgment which may be given against him in the action; or

(b) Satisfy the court, by affidavit, or, with the leave of the court, by oral evidence of himself or any other person who can swear positively to the facts, that he has a good prima facie defence to the action.

Rule 68 further provides that if the defendant does not find security or satisfy the court, as provided in Rule 66, that he has a good prima facie defence to the action, the court may enter summary judgment for the plaintiff, and, thereupon, the plaintiff may sue out of the office of the Registrar, a writ or process of execution in terms of any Rule of court.

In terms of Rule 69, if the defendant finds security or satisfies the court, as provided in Rule 66, the court shall give leave to defend, and the action shall proceed as if no application had been made.

In casu, no evidence was placed before the court that the appellants had given security to the satisfaction of the Registrar to satisfy any judgment which may be given against them in the action.

At page 2 of the High Court's judgment, the following is stated:

“I must point out for completeness that the respondents have failed to find security to the satisfaction of the Registrar in terms of Rule 66(1) as notified and Mr Mpofu conceded that fact…,. Clearly, therefore, the security bonds filed by the respondents did not satisfy the requirements of Rule 66(1). This is simply because the satisfaction of the Registrar was not secured. For that reason, the respondents could not be given leave to defend in terms of Rule 69. I therefore proceeded on the merits of the matter to determine whether the respondents have shown a good prima facie defence to the action.”…,.

Against the lack of evidence or proof that security was given as notified to the court a quo, and the concession by the appellants' counsel in the court a quo, that security had not been paid, this ground of appeal only serves to expose self-contradiction on the part of the appellants. As no security had been given, in compliance with Rule 66(1)(a), the court a quo had to proceed, as it did, in terms of Rule 66(1)(b), and enquire into the bona fides of the appellants' defence.

In the circumstances, the appellants have failed to show misdirection by the court a quo in the manner alleged.

The appellants' attempt to purport to indicate that they had a good and bona fide defence was unsuccessful, the learned judge stating, at page 3 of his judgment:

“…,. Despite the respondents' bizarre averment in their pleas that they paid $24 million (Zimbabwe currency), as the purchase price for the block of flats, it is common cause now that they did not pay a single penny towards the purchase price and they have belatedly offered to pay the applicant a sum of $650,000= as purchase price, which offer the applicant has rejected insisting that the flats are no longer for sale.”

The lease agreements, in terms of which the appellants occupied the flats, lapsed in 2000 after which they were given an option to purchase them. The respondents exercised the option but failed to pay the purchase price within the stipulated period. For that reason, their action for specific performance, through their Residents Association, in HC4633/05, was dismissed. Their appeal to this Court in SC19/10 was equally unsuccessful, the Court holding that the respondent had not waived its right to cancel the agreement when they failed to pay the purchase price by the set date, 31 July 2000.

In the court a quo, the submission was made that the appellants had made a counterclaim in which they seek an order directing the respondent to transfer the flats to them on the basis that they purchased them for $24 million (Zimbabwean currency), and, as such, they are entitled to take transfer. The learned judge aptly commented:

“Just how the respondents hope to sustain the counter claim they have made is an unfathomable mystery. These are the same respondents who are offering to pay the applicant $650,000= as purchase price for the flats because it is common cause that they did not pay anything towards the purchase price. They then have the temerity, in the same breath, to submit a counter claim alleging having paid $24 million as purchase price. This trifling with the court must simply stop. It is the kind of kindergarten behaviour which should find no place in our courts and must be suppressed with an order for punitive costs as a seal of the court's disapproval of such abuse of court process.”

On these very cogent reasons the court a quo found that the appellants, having no sale agreement to enforce and no lease agreement in terms of which they could remain in occupation, could only do so by the grace of the respondent. The respondent had withdrawn that grace and was instead seeking their ejectment.

In January 2012, the applicant entered into discussions with the first defendant to sell immovable property, No. 7 Cowie Road, Tynwald to the defendant. According to the discussions, the purchase price for the property was going to be $180,000=.

A draft agreement capturing the spirit of the discussion was prepared but it was never signed. It is not clear from the facts why the draft agreement was not signed. Instead, a lease agreement for the same property was concluded between the applicant and two others and the first defendant on 12 January 2014. The lease was for two years, with an option to renew for four years provided the lessee shall have given the lessor written notice of the lessee's intention to exercise this option at least two months prior to the expiry of the two year lease period. Before the two year lease period expired, a misunderstanding arose between the parties on whether the agreement between the parties was a lease agreement or a sale agreement. This misunderstanding is borne out by the respondent's letter to the applicant, dated 16 May 2012, insisting that the agreement between the parties was a lease agreement and not a sale agreement since no subdivision permit had been issued for the property in question.They said an Agreement of Sale in the absence of a subdivision permit for the property would contravene the provisions of the Regional Town and Country Planning Act [Chapter 29:12] and would thus be unlawful. The relevant section of the above Act is section 39 which forbids persons from subdividing or entering into any agreement for the change of ownership of any portion of a property without a permit granted in terms of section 40 of the Regional, Town and Country Planning Act [Chapter 29:12].

It appears an amicable resolution of the issue failed because the applicant issued summons against the respondent and the City of Harare on 14 June 2012. The basis of the claim in the summons is not the lease agreement; but the sale discussions.

I call them sale discussions because no sale agreement was ever signed.

The wrangle continued, and, on 15 May 2013, the applicant advised the respondent that they could not renew the lease when it expired in December 2013 and gave notice to that effect. The respondent wrote back, on 19 July 2013, and advised the applicant that they were not going to vacate the premises at the expiration of the lease unless the applicant paid in full the value of improvements effected by the respondent in terms of Clause 8 of the lease agreement. In the letter of 19 July 2013, the respondent also referred to an amount of US$140,000= which it said it had paid to the applicant as a loan advance. The respondent demanded payment of the loan advance of US$140,000= within seven (7) days.

The applicant responded to the letter of demand, on 23 July 2013, asking for the value of improvements effected at the premises in accordance with Clause 8 of the lease agreement. The applicant also indicated that it would hold on to the US$140,000=, to be used as a set off against the withholding damages.

On 27 March 2014, the applicant then applied for summary judgment. The applicant said the respondent did not have a bona fide defence to his claim and had entered appearance for purposes of delay.

After a careful analysis of the facts before me I have come to the conclusion that an application for summary judgment cannot succeed.

In terms of Rule 64(1), a summary judgment is entered “for what is claimed in the summons and costs.” So we start by looking at what the applicant has claimed in the summons.

Indeed, the applicant enjoins its summons of 14 June 2012 to its application as Annexure D. The applicant has claimed eviction, holding over damages and costs. However, in its answering affidavit, the applicant somersaults and says the summons were withdrawn. So why were they referred to in the founding affidavit and attached? Clause 7 of the founding affidavit categorically says;

“I verify the cause of action set out in the summons commencing action and the amount claimed therein.”

The summons are then attached as Annexure D….,.

There is no indication in the founding affidavit that the summons were withdrawn. This appears for the first time in an answering affidavit and yet it is the founding affidavit which is required to contain all relevant facts in the matter. In Austerlands (Pvt) Ltd v Trade and Investment Bank and 2 Others SC92-05, the court said;

“The general rule that has been laid down in this regard is that an application stands or falls on the founding affidavit and the facts alleged in it. This is how it should be because the founding affidavit informs the respondent of the case against the respondent that the respondent must meet.”

In Magwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (SC) the court said -

“It is well established that in application proceedings, the cause of action should be fully set out in the founding affidavit and that new matters should not be raised in an answering affidavit.”

There is also no second summons to “verify the cause of action and the amount claimed therein.”

The applicant is therefore bound by his founding affidavit and the court rejects the applicant's attempt to embellish its case as the application proceeds….,.

During the hearing, the applicant conceded that it owes the respondent US$120,000=.

It is difficult for a landlord to succeed in evicting a tenant it owes $120,000= through summary judgment as such a remedy may lead to an injustice. It is best that the parties go to trial over the matters in dispute. Both parties further conceded that the improvements have not been evaluated. So there is still a lot of homework to be done and evidence to be furnished before the applicant's claim can be finalised.

Summary judgment is an extraordinary remedy in the sense that it denies a party who has shown an interest to defend a claim, the opportunity to do so. It is a procedure conceived so that:

“A mala fide defendant might summarily be denied, except under onerous conditions, the benefit of the fundamental principle of audi alteram partem…, when all the proposed defences to the plaintiff's claim are unarguable, both in fact and in law…,.” (Chrisma v Stutchberry 1973 (1) RLR 277).

It has been stated, conversely, that, in order to succeed in defeating a summary judgment application, the respondent must set out a bona fide defence by alleging facts, which, if proved at the trial, would entitle him to succeed. As poignantly stated by ZIYAMBI JA in Kingstons Ltd v L. D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,:

“Not every defence raised by a defendant will succeed in defeating a plaintiff's claim for summary judgment. Thus, what the defendant must do is to raise a bona fide defence – a 'plausible case' – with 'sufficient clarity and completeness' to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which, if established, 'would entitle him to succeed.' 

This is an application for summary judgment in which the applicant craves for judgment against the respondent in the sum of $106,640=20 together with interest at the prescribed rate from 25 September 2012 to date of payment and costs of suit.

The respondent, on the other hand, would have none of it and frantically opposes the application on the flimsiest of grounds ever put on paper….,.

In order to defend an application for summary judgement, the respondent must disclose a defence and material facts upon which the defence is based with sufficient clarity and completeness which will persuade the court that, if proved at the trial, such facts will constitute a defence to the merits: Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…,.

Not every defence raised will succeed in defeating a claim for summary judgment. The defence raised must be bona fide: Kingstons Ltd v L.D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.

The respondent must not content itself with vague generalities and conclusory allegations not substantiated by solid facts: District Bank Ltd vHoosain & Ors 1984 (4) SA 544 (C) 547 G-H; Mubaiwa v Eastern Highlands Motel (Pvt) Ltd SC139-86.

This court application is made in terms of Rule 64(1) of the High Court Civil Rules, 1971, seeking summary judgment in favour of the applicant. The applicant claims the following;

(a) An order confirming cancellation of the lease agreement between the parties.

(b) Payment of arrear rentals in the sum of US$18,133=03.

(c) Eviction of the respondent together with all those claiming through it occupation of the leased premises.

(d) Payment of hold-over damages in the sum of US$3,500= from the date of issue of summons to date of eviction.

(e) Costs of suit.

The respondent opposes the application for summary judgement and asserts that the claim is not unassailable and that there is a bona fide defence to the claims.

In this summary judgment application, the two plaintiffs, who are husband and wife, seek to recover from the defendant a sum of $31,353= being the outstanding balance of the purchase price they paid to the defendant in anticipation of the successful conclusion of a Sale Agreement involving Stand 2073 Salisbury Township of Lot 3 Bannockburn.

The applicant is an incorporation based in Kwekwe and so is the second respondent. In HC2978/15 the applicant sued out a summons seeking an order declaring null and void the cession of certain Stands in Kwekwe to the second respondent and for the restoration of all rights and interest in those Stands to it on the pain of attorney and client costs.

When the second respondent entered appearance, the applicant brought this application for summary judgment on the basis that it has not a bona fide defence and that appearance was entered for purposes of delay only.

The application is opposed by the second respondent while the other two respondents, Irvine Manhire, who executed the cession from Tetrach Investments (Pvt) Ltd, an apparently non-existent entity, and the third respondent, which is the local authority owning the Stands in question, stayed far away from these proceedings….,.

Summary judgment is an extraordinary remedy in the sense that it denies a party who has shown a desire to contest a claim, an opportunity to do so. It is a procedure conceived so that:

“a mala fide defendant might summarily be denied, except under onerous conditions, the benefit of the fundamental principle of audi alteram partem…, when all the proposed defences to the plaintiff's claim are unarguable, both in fact and in law…,..”

Chrisma v Stutchberry 1973 (1) RLR 277.

Conversely, in order to succeed in defeating a summary judgment application the respondent must set out a bona fide defence by alleging facts which, if established at the trial, would entitle him to succeed;

Kingstons Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.; Jena v Nechipote 1986 (1) ZLR 29 (S).

On 16 April 2015, the applicant issued out summons from this court seeking payment of $18,000= being unpaid money for security services rendered to the respondent in terms of two separate agreements entered into by the parties. These agreements are marked as Annexures 'C' and 'D' to the application for summary judgment.

Also annexed to that application is a hand-written letter by the respondent's representative indicating its commitment to settle the debt of $18,000=.

In its summons, the applicant made an uncontroverted averment that the respondent had made a commitment to settle the debt but had failed to do so.

Upon being served with summons commencing action, the respondent entered appearance to defend the action on 8 June 2015 and immediately filed a request for further particulars on the same date. The request for further particulars sought to dwell on issues which the respondent was fully aware of.

The applicant's swift response was to file an application for summary judgment alleging that the respondent was employing the usual tactics to waste time knowing fully well that it had no defence to offer to the applicant's claim.

In its notice of opposition to the application for summary judgment, the respondent has basically raised two issues, viz, that Annexure 'C', one of the contracts giving rise to this action, was signed under duress, and, secondly, that at the time the applicant's security officers were guarding the respondent's property, certain goods were stolen whose value exceeds the applicant's claim. The argument was that the defence of set-off, and, possibly, a counter-claim was available to the respondent and therefore summary judgment application was not a sealed application in this matter.

The law, as regards the requirements for summary judgment, is settled.

The applicant must demonstrate that it has an unassailable case and that the respondent has no bona fide defence to the applicant's case and that the notice of intention to defend the action is motivated by the respondent's desire to obstruct the smooth conclusion of the applicant's case. See Bank of Credit and Commerce Zimbabwe Ltd v Jani Investments (Pvt) Ltd 1983 (2) ZLR 317.

MACDONALD ACJ, in Beresford Land Plan (Pvt) Ltd v Urquhart 1975 (1) RLR 260 (AD); 1975 (3) SA 619, succinctly puts it when he remarked that “the broad effect that summary judgment procedure was the principle means by which unscrupulous litigants seeking only to delay a just claim by entering appearance to defend are thwarted and that it is of the greatest importance that the efficacy of the procedure should not be impaired by technical formalism.”

I now deal with the issues raised by the parties in this case.

I find the issue of duress being raised by the respondent in this case to be unsustainable for the following reasons. The contract which the respondent says it signed under duress was signed on 19^th December 2013. It is inconceivable, in my view, that if there was any duress, the deponent to the respondent would have signed an acknowledgement of liability loaded with terms of extinguishing the debt on 17 December 2014 - almost a year later. If at all there was duress, there would have been no need for the respondent's representative to acknowledge such tainted liability. The alleged duress is clearly being raised to cloud issues here.

The potential counter-claim arising out of the respondent's claim of its allegedly stolen goods at the time the applicant's security guards were guarding its premises was brought to the applicant's attention long before the application for summary judgment was filed in this court. In fact, on 26 June 2013, the respondent's secretary wrote to the applicant demanding compensation for its allegedly stolen goods valued at $24,369=. The applicant acknowledged the possibility of such theft having occurred but alleged its insurers were still investigating that issue.

Under such circumstances, it is extremely difficult for the applicant's claim to be determined at the stage of summary judgment. The respondent appears to have a bona fide defence to the applicant's claim.

The application for summary judgment is dismissed with costs being costs in the main cause.

This is an application for summary judgment in the summons proceedings under case number HC39/15 wherein the applicant claimed the following:

(a) An order declaring that the defendant's refusal to sign a lease agreement with the applicant in respect of the applicant's premises, namely, Shop 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo, constitutes repudiation of the lease between the parties and same is terminated with effect from the date of this order;

(b) Alternatively, an order that the lease agreement between the parties be and is hereby terminated forthwith in terms of clause 33.1 as read with sub-clauses 33.1.1 and 33.1.3 thereof by reason of the respondent's breach of 8.1; 17.1.2; 17.1.3; 20.1 and 20.5 of the lease agreement.

(c) An order that the respondent vacate the applicant's premises, namely, Shop 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo within 14 days of this order failure of which the Sheriff of this court be and is hereby ordered to forcibly evict the respondent.

(d) Payment of US$16,000= and US$866=20 being arrear rentals and operating costs respectively, hold over damages of US$26=66 per day and further operating costs the respondent would have incurred as at the date of judgment.

(e) Costs of suit on an attorney and client scale in terms of clause 33.2 of the lease agreement.

In this application, the applicant sought summary judgment in respect of paragraphs (a), (b), (c) and (e). The claim in paragraph (d) has been excluded….,.

The Law

Order 10 Rule 64 which states -

“(1) Where the defendant has entered appearance to defend to a summons, the plaintiff may, at any time before a pre-trial conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs.

(2) A court application in terms of sub-rule (1) shall be supported by an affidavit made by the plaintiff or by any person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action.

(3) A deponent may attach to his affidavit filed, in terms of subrule (2), documents which verify the plaintiff's cause of action on his belief that there is no bona fide defence to the action.

(4) Order 32 shall apply to the form and service of an application in terms of this rule and to any opposition thereto.”

The courts have, on innumerate times, stated the legal principles applicable to summary judgment applications. In Scropton Trading (Pvt) Ltd v Khumalo 1998 (2) ZLR 313 (S)…, it was held that:

“A plaintiff seeking summary judgment must bring himself squarely within the ambit of Rule 64(1) of the High Court Rules which requires that the cause of action must be verified. It must be substantiated by proof and the supporting affidavit must contain evidence which establishes the facts upon which reliance is placed for the contention that the claim is unimpeachable.”

The nature of the defences that ought to be raised to successfully oppose an application for summary judgement was highlighted as follows in Kingstons (Pvt) Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,:

“In summary judgment proceedings, not every defence raised by a defendant will succeed in defeating a plaintiff's claim. What the defendant must do is to raise a bona fide defence or a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. The defendant must allege facts which, if established, would enable him to succeed. If the defence is averred in a manner which appears, in all circumstances, needlessly bold, vague or sketchy, that will constitute material for the court to consider in relation to the requirement of bona fides. The defendant must take the court into his confidence and provide sufficient information to enable the court to assess his defence. He must not contend himself with vague generalities and conclusory allegations not substantiated by solid facts.”

The Supreme Court further held at p 452E that:

“Care must be taken, in a suit for ejectment, not to elevate every alleged dispute of fact into a real issue which necessitates the taking of oral evidence, for to do so might well encourage a lease against whom ejectment is sought to raise fictitious issues of fact thereby delaying the resolution of the matter to the detriment of the lessor.”

See also Hales v Doverick Investments (Pvt) Ltd 1998 (92) ZLR 235 (H)…,.

The applicant (Alshams) instituted action proceedings against the respondents, jointly and severally, the one paying the other to be absolved for the payment of US$2,789,137=02….,.

Savannah, the second respondent, entered appearance to defend. Alshams then instituted the present application for summary judgment proceedings….,.

Summary judgment is a procedure designed to enable the plaintiff whose claim falls within certain defined categories to obtain judgment without the necessity of going to trial. The objective is to enable the plaintiff, with a clear case, to obtain swift enforcement of a claim against a defendant who has no real defence to the claim.

This position is now settled in our law. Case law has stressed the fact that the remedy provided by this rule is of an extraordinary and drastic nature which is very stringent in that it closes the door for the defendant. The basis of granting the claim is that the plaintiff's case is unimpeachable and that the defendant's defence is bogus or bad in law. See HERBSTEIN & VAN WINSEN, ed 4…,.

The defendant must establish a prima facie defence and must allege facts, which, if he can succeed in establishing them at trial, would entitle him to succeed in his defence at trial. See Rex v Rhodian Investments (Pvt) Ltd 1957 R & N 723; Kingstone Ltd v LD Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S).

See also Hales v Doverick Investments (Pvt) Ltd 1988 (2) ZLR 228…, where MALABA J…, stated;

“The defendant's affidavit should not disclose the nature of the defence relied upon to resist plaintiff's claim for ejectment, but must set out the material facts on which that defence is based in a manner that is not inherently or seriously unconvincing. In Mbayiwa v Eastern Highlands (Pvt) Ltd SC139-86, at pp 4-5 of the cyclostyled judgment, McNALLY JA referred to the degree of particularity and completeness which the facts averred by the defendant in its affidavit filed in opposition to an application for summary judgment must achieve as being that:-

'while the defendant need not deal exhaustively with the facts and the evidence relied on to sustain 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 statements 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 (Breitebanch v Fiat SA (Edms) BPK 1876 (2) SA 226 at 228 D-E).

…, 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 (District Bank Ltd v Hoosain & Ors 1984 (4) SA 544 at 547 G-H).'”

A party whose claim is unassailable should not be delayed as a result of the fulminations of a debtor who is ducking and diving to avoid paying a debt but has nothing meaningful to say; a debtor who believes he or she can say anything and in the process succeed to delay the day of reckoning as much as possible. Such a party should be allowed to take judgment through the procedure for summary judgement without delay and a debtor in the position of the respondent should be summarily denied an opportunity to continue playing games with the court.

The test to be applied to the respondent's opposing affidavit has been stated in a number of authorities as being that it has to allege facts which if established at the trial would entitle it to succeed in its defence: Rex v Rhodian Investments Trust (Pvt) Ltd 1957 R & N 723. The respondent has to establish that there is a mere possibility of success; that there is a plausible case; and that there is a real possibility of an injustice occurring if summary judgment is granted: Jena v Nechipote 1986 (1) ZLR 29 (S)…,.

The affidavit in opposition must also set out material facts, on which that defence is based, with sufficient particularity 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)…,.; Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…,.