Summary Judgment: Clear and Unanswerable Claims re: Approach

HH136-15 : LEWIS NDHLOVU and CHIPO NDHLOVU vs SUSAN HARUPERI
Ruled By: MATHONSI J

On 16 April 2014, the two (2) applicants instituted summons action against the respondent for an order of cancellation of a lease agreement entered into between the parties on 5 December 2013 in terms of which the applicants leased out to the respondent certain premises, being Stand 531 Nikolova Crescent Borrowdale Brook, Harare, on certain terms ...

They also sought an order for arrear rentals, a late payment fee, electricity bill and other levies.

The basis of the claim was that the respondent defaulted in paying rentals resulting in arrears accumulating to a sum of $13,600=, she failed to pay levies of $500=, electricity bill of $601= and was therefore liable in terms of the lease agreement to pay a 10% late payment penalty.

The respondent entered appearance to defend, and, in due course, a plea in which she effectively only contested the penalty stipulation relating to late payment of rentals was filed. She averred in paragraph(s) 2 to 4 of that plea that:

“2. Ad para 4

The terms of the lease agreement are noted and defendant pleads that the terms mentioned under subpara 4.4 which provided for late payment penalty fee of 10% over and above the claim of interest in subpara 4.5 contravenes the Contractual Penalties Act in that such penalty stipulation is out of proportion to any prejudice that would have been suffered by the plaintiffs. Enforcement of that penalty stipulation will result in plaintiffs being unjustly enriched.

3. Ad para 5

The defendant pleads that her failure to pay the rentals for the period in question is due of (sic) the fact that there was a robbery at the leased premises and her merchandise, valued at $17,000=, was stolen. The said robbery/theft was reported to the police and pending investigations. It is from the stolen merchandise that defendant realised the money for rentals and derive her livelihood. The defendant is making frantic efforts to settle the debt from other sources.

4. Ad para 6-7

This is disputed. The defendant has since paid the electricity bills and levies which are now up to date.”

The applicants were obviously not impressed by that plea, and believing that appearance has been entered for purposes of delay, they launched the present application for summary judgment on the basis that the defendant does not have a bona fide defence - especially as the respondent had previously acknowledged indebtedness.

Not to be outdone, the respondent filed opposition, maintaining her challenge to the penalty stipulation as stated in her plea. She went on to say that after the summons was issued against her she paid certain sums of money to reduce the rent arrears and also paid the electricity bills and outstanding levies.

The applicant may have been correct in approaching the court seeking summary judgment for essentially two (2) reasons, namely, that on 29 August 2014, well after the proceedings were instituted, the respondent vacated the premises in capitulation and that the respondent paid $5,000= towards arrear rentals leaving a balance of $8,600= which she admits she owes. She also paid the outstanding electricity bill, again, a clear indication that the claim for that was well grounded. In fact, counsel for the respondent conceded that the only issue being contested is the 10% penalty for late payment of rent. Clearly, therefore, in respect of the other defences, the respondent was trying her luck. They will not detain us here.

The procedure for summary judgment was meant to eliminate bogus defences and those defences which are bad at law as to have no substance or merit: Roscoe v Stewart 1933 CPD 138.

It is provided for in Rule 64(1) of the High Court of Zimbabwe Rules, 1971 and in terms of subrule (2) of that Rule; it is made when the applicant harbours the belief that there is no bona fide defence to the action.

A respondent who is faced with such application must then disclose a defence and material facts upon which such defence is based with sufficient clarity and completeness so as to persuade the court that if proved at the trial those facts will constitute a defence to the claim: Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…,.

Not every defence raised will succeed in defeating a plaintiff's claim for summary judgment. The defendant must allege facts which, if established, would entitle him to succeed at the trial; Kingstons Ltd v D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.; Jena v Nechipore 1986 (1) ZLR 29 (S).

HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA
Ruled By: BERE J and MATHONSI J

This is an appeal against the judgment of the Magistrates Court sitting at Gweru delivered on 4 November 2015 in which it granted summary judgment in favour of the respondent in the sum of $3,750= together with interest at the rate of 5% per annum from 2 June 2015 to date of payment and costs ...

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO
Ruled By: MATHONSI J

Some people simply will not settle a debt. No matter how many times the creditor runs around the walls of Jericho the walls remain unshakeable and will simply not fall. So steadfast are they that the debtor would rather spend so much on the legal fees of a very senior counsel defending an unassailable claim all ...

HH155-15 : TAYESA BANDA vs VUSANI G.D. SIBANDA and ORRIL ENTERPRISES (PVT) LIMITED
Ruled By: TAGU J

This is an application for a summary judgment brought in terms of Rule 64(1) of the High Court Rules….,. The rules on summary judgement are clearly that the applicant must allege that the respondent does not have a bona fide defence and has merely entered the appearance to defend with the objective, not of protecting any existing ...

View Appeal
HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

When these matters first came before me, on 18 July 2013, Mr Mpofu, for the respondents, sought a postponement to enable the respondents to attend to a host of house-keeping issues which were then outstanding. In particular, the respondents desired to submit bonds of security in terms of Rule 66(1) of the High Court of ...

Although the application was strongly opposed by Mr Mazonde, counsel for the applicant, I granted the application as it was apparent that counsel for the respondents was not ready to argue the matter and the issue of security would have disposed of the applications. I postponed the matter to 25 July 2013 for that purpose.

On that date, Mr Mpofu then made another application for a postponement this time to enable the respondents to prosecute a chamber application for consolidation of these four (4) matters with yet another related matter, HC673/09.

The application had been brought to my attention, albeit without the court record, and not by the Registrar of this court but by the respondent's counsel instructing Mr Mpofu, late on 24 July 2013. I must say that the application in question has nothing to do with these matters which stand alone and could not detain me in dealing with those matters that had already been placed before me.

Mr Mpofu also sought to have the matter deferred to allow the respondents to lodge an application for the upliftment of the bar operating against the respondents by reasons of failure to file heads of argument in all the four (4) matters. He submitted that the application would be filed later that day.

It became apparent that that the respondents were buying time as it should have been apparent to them that there was a bar requiring upliftment which should have been attended to. The applicant cannot be prejudiced because of the dilatoriness of the respondents. I refused to postpone the matters, and, in terms of Rule 238(2b), proceeded to deal with the applications on the merits.

I must point out, for completeness, that the respondents have failed to find security to the satisfaction of the Registrar in terms Rule 66(1) as notified and Mr Mpofu conceded that fact. What they have done is to file what they have titled “Bond(s) of security in terms of Rule 66(1)(a)” signed by their legal practitioners.

In terms of Rule 66(1), upon the hearing of a summary judgment application under Rule 64, the defendant has two (2) options, namely,

(i) To give security “to the satisfaction of the Registrar” to satisfy any judgment which may be given against him in the action; or

(ii) With the court's leave, by oral evidence, that he has a good prima facie defence to the action.

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 actions.

The background is that the applicant is the owner of four (4) blocks of flats situated on Stand 13301 Salisbury Township Harare known as Monaco occupied by 18 residents, Cannes with 12 residents, St Maxime with 8 residents and Juan Les Pins which has 10 residents. The applicant instituted four (4) sets of summons action against the occupants of the blocks of flats seeking their eviction, namely, HC674/09 for Monaco, HC675/09 for Cannes, HC856/09 for St Maxime and HC857/09 in respect of Juan Les Pins.

In its identical declarations, the applicant averred that the occupants had taken occupation originally by virtue of lease agreements which expired before year 2000. Thereafter, it had granted the tenants an option to purchase the units which they occupied which option they had exercised, but failed to pay the purchase price in terms of the option as a result of which their right to purchase lapsed. The occupants having refused to vacate the flats, despite demand, the applicant sought an order for their ejectment, holding over damages, and costs of suit.

When the occupants, who are the respondents in these matters entered appearance and filed identical pleas to the claims, the applicant filed these summary judgment applications in which it sought to defer the claims for holding over damages electing to pursue only the ejectment of the respondents.

By order of this court, issued on 3 October 2012, per ZHOU J, in HC8831/12, the four matters were consolidated to be determined at a single hearing. It is on that basis that the matters were placed before me and that only one judgment is being issued.

In my view, these matters resolve themselves on the facts which are common cause. Despite the respondents' bizarre averment in their pleas that they paid $24 million (Zimbabwean currency), as the purchase price for the blocks 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.

It is common cause that the lease agreements under which the respondents moved into the flats lapsed in year 2000 when they were given and took an option to purchase the flats in question. They are therefore occupying the flats not by virtue of any lease agreement but because they lay a claim to the flats in terms of the purported sale agreement allegedly entered into.

It is also common cause that the respondents, through their Residents Association, approached this court seeking an order for specific performance in HC4633/05. The application was dismissed by judgment of this court delivered on 3 July 2007, per OMERJEE J, on the basis that the respondents had breached the sale agreement by failing to make payment of the purchase price within the time given, namely, 31 July 2000, and, as such, the applicant “was entitled to unilaterally cancel the agreement or ignore it altogether.”

The respondents appealed against the judgment of this court to the Supreme Court which, on 22 October 2010, handed down judgment in St Tropez Residents Association v National Social Security Authority & Anor SC19-10 upholding the judgment of this court. The Supreme Court ruled that the applicant had not waived its right to cancel the agreement when the respondent failed to pay the purchase price by 31 July 2000 and that they were not entitled to specific performance.

With the rights of the parties having been determined by the Supreme Court, the applicant has brought these summary judgement applications on the basis that the respondents have not a bona fide defence to the claim for eviction.

Summary judgment is available to a plaintiff whose belief it is that his claim is unassailable and therefore should not be subjected to the delays attendant to a trial. While it is an extraordinary remedy which is very stringent in effect, as it closes the door to a defendant to defend the claim, it is availed to a party whose claim is so unanswerable that it should be saved the agony of a trial: Ashanti Gold Field Zimbabwe t/a Rebecca Mine v Pfidze HH347-12…,.

In order to defeat a summary judgment application a defendant 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 Dollerick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…,.; African Banking Corporation of Zimbabwe Ltd t/a Banc ABC v PWC Motors (Pvt) Ltd & Ors HH123-13.

Not every defence raised by a defendant will succeed in defeating a claim for summary judgment. It must be a bona fide defence; a plausible case. If it is averred in a manner which is needlessly bald, vague and sketchy, it will constitute material to be considered by the court in relation to the bona fides of that defence; Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.; Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)…,.

In casu, the respondents have argued that summary judgment should not be granted on the basis of Ad Lis Alibi Pendenis as an application was made by the applicant for the striking out of their pleas as being bad at law which application was argued before GOWORA J…, but judgment has not been handed down.

In my view, that argument cannot defeat a summary judgment application.

As I have already stated, summary judgment is available to a litigant whose claim is unanswerable and who should not be delayed by a trial for that reason. The attack on the respondent's plea was in pursuance of what the applicant perceived was an unassailable claim. Why the judgment has not been handed down even as GOWORA J moved to the Supreme Court almost two (2) years ago, is unknown. Since then, the Supreme Court has determined the respective rights of the parties, thereby entitling the applicant to make an approach to this court for summary judgment. In my view, it matters not that an interlocutory application had been made which would not have resolved the matter to finality anywhere. Upholding the argument based on ad lis alibi pendens in the circumstances of this matter would defeat the very purpose of the relief of summary judgment premised as it is on the time honoured principle that unscrupulous litigants bent on delaying just claims should be suppressed at all costs.

The respondents also submitted that they have made a counter claim in which they seek an order directing the applicant 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.

In Greenland v Zichire HH93-13, I bemoaned the unacceptable and detestful habit of litigants to trifle with courts of law which is fast developing in this jurisdiction and is regrettable indeed. 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 counterclaim 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.

The respondents have also sought to argue that the Supreme Court did not determine the rights of the parties and that they are still in with a chance to take another crack at goal as it were.

I do not agree.

What the Supreme Court did was to settle the dispute once and for all. It made it clear that the respondents have no right over the properties arising out of their option to purchase because they did not effect payment of the purchase price by 31 July 2000. What this means is that the respondents are left with nothing. They do not have a sale agreement to enforce. They do not have a lease agreement in terms of which they can remain in occupation. They can only remain in occupation by the grace of the applicant, which grace the applicant has withheld and is, instead, seeking their ejectment.

I am satisfied that the applicant's claim for ejectment is unassailable.

The applicant has applied that the issue of arrear rentals and holding over damages be referred to trial in terms of Rule 73 of the High Court of Zimbabwe Rules, 1971.

I am of the view that it is appropriate to refer those issues to trial and enter summary judgment on ejectment only.

The applicant sought an order for costs de boniis propriis against the legal practice of Venturas & Samukange as they should have known that the respondents do not have a defence but proceeded, that notwithstanding, to file what the applicant has called “a bogus defence.”

I have not acceded to that application because it would appear that Venturas & Samukange underwent a damascane experience after filing opposition to the applications. They renounced agency and virtually “absconded” leaving the respondents to their devices.

I agree however that this is an appropriate case for costs to be awarded on a punitive scale as I have already stated.

In the result, I make the following order, that;

1. In Case No HC674/09 summary judgment be and is hereby entered for the applicant against the respondents for eviction only.

2. Within 48 hours of the date of this order the respondents and all those claiming occupation through them, shall vacate such of the flats or apartments or rooms or premises at Monaco, St Tropez Apartments Block, Samora Machel Avenue East, Eastlea Harare failing which the Sheriff for Zimbabwe or his lawful deputy duly assisted by the Zimbabwe Republic Police, if need be, is directed, authorised and empowered to evict the respondents and all those claiming occupation through them from the premises aforesaid, and, as specified below, give vacant possession to the applicant.

2.1 N. Svova 1^st respondent 7 Monaco.

2.2 E. Madzima & G.Madzima 2^nd respondents 7A Monaco.

2.3 M. Makoni 3^rd respondent 3 Monaco.

2.4 C. Chidziva 4^th respondent 8A Monaco.

2.5 M. Manyika 5^th respondent 9 Monaco.

2.6 N.S. Barnabas 6^th respondent 9A Monaco.

2.7 S. Maredza & P Maredza 7^th respondent 10 Monaco.

2.8 L. Ushumba 8^th respondent 10A Monaco.

2.9 C.R. Muzenda 9^th respondent 11 Monaco.

2.10 F. Mlotswa 10^th respondent 11A Monaco.

2.11 N. Karimahanga & R Karimahanga 11^th respondent 14 Monaco.

2.12 P. Chabuka 12^th respondent 14A Monaco.

2.13 L. Marumbwa 13^th respondent 15 Monaco.

2.14 P. C Hama 14^th respondent 15A Monaco.

2.15 B & E Mpofu 15^th respondent 12 Monaco.

2.16 T. Mguni 16^th respondent 12A Monaco.

2.17 C. Deka 17^th respondent 13 Monaco.

2.18 C. Chivaura 18^th respondent 13A Monaco.

3. The applicant's claim for holding over damages be and is hereby referred to trial in terms of Order 10 Rule 73 of the rules of this Honourable Court.

4. The respondents shall pay the costs of this application on the scale of legal practitioner and client jointly and severally the one paying the others to be absolved.

5. In Case No HC675/09 summary judgment be and is hereby entered for the applicant against the respondents for eviction only.

5.1 Within forty eight [48] hours of the date of this order the respondents, and all those claiming occupation through them, shall vacate such of the flats or apartments or rooms or premises at Cannes, St Tropez Apartments Block, Samora Machel Avenue East, Eastlea, Harare failing which the Sheriff for Zimbabwe, or his lawful deputy duly assisted by the Zimbabwe Republic Police, if need be, shall be entitled, directed, authorised and empowered to evict the respondents, and all those claiming occupation through them, from the premises aforesaid, and, as specified below, give vacant possession of the same to the plaintiff:

5. 2 R. Makasi First Respondent 1 Cannes.

5.3 S. Hlatshwayo Second Respondent 1A Cannes.

5.4 S. Sibanda Third Respondent 2 Cannes.

5.5 R. Mashave Fourth Respondent 2A Cannes.

5.6 B. Duri Fifth Respondent 3 Cannes.

5.7 W. Zhakata Sixth Respondent 3A Cannes.

5.8 E. Makunda Seventh Respondent 4 Cannes.

5.9 W. Grabowski Eighth Respondent 4A Cannes.

5.10 D. Mudambanuki & S. Mudambanuki Ninth Respondents 5 Cannes.

5.11 L. Cheuka Tenth Respondent 5A Cannes.

5.12 N. Chikwinya Eleventh Respondent 6 Cannes.

5.13 J. Magarangoma Twelfth Respondent 6A Cannes.

6. The applicant's claim for holding over damages be and is hereby referred to trial in terms of Order 10 Rule 73 of the Rules of this Honourable court.

7. The respondents shall pay the costs of this application on the scale of legal practitioner and client jointly and severally, the one paying the others to be absolved.

8. In Case No. HC856/09 summary judgment be and is hereby entered for the applicant against the respondents for eviction only.

8.1 Within forty eight [48] hours of the date of this order the respondents, and all those claiming occupation through them, shall vacate such of the flats or apartments or rooms or premises at St Maxime, St Tropez Apartments Block, Samora Machel Avenue East, Eastlea, Harare failing which the Sheriff for Zimbabwe, or his lawful deputy duly assisted by the Zimbabwe Republic Police if need be, shall be entitled, directed, authorized and empowered to evict the respondents, and all those claiming occupation through them, from the premises aforesaid, and, as specified below, give vacant possession of the same to the plaintiff:

8.2.P. Mudyiwa & T. Mudyiwa First Respondent 22 St Maxime.

8.3 I. Zenda Second Respondent 22A St Maxime.

8.4 S. Nyathi Third Respondent 23 St Maxime.

8.5 N.N. Matunhire Fourth Respondent 23A St Maxime.

8.6 T. Mangwande Fifth Respondent 24 St Maxime.

8.7 M. Mkwakwami Sixth Respondent 24A St Maxime.

8.8 C. Manyida Seventh Respondent 25 St Maxime.

8.9 F. Jangara Eighth Respondent 25A St Maxime.

9. The applicant's claim for holding over damages be and is hereby referred to trial in terms of Order 10 Rule 73 of the Rules of this Honourable Court.

10. The respondents shall pay the costs of this application on the scale of legal practitioner and client jointly and severally, the one paying the others to be absolved.

11. In Case No. HC857/09 summary judgment be and is hereby entered for the applicant against the respondents for eviction only.

11.1 Within forty eight [48] hours of the date of this order the respondents, and all those claiming occupation through them, shall vacate such of the flats or apartments or rooms or premises at Juan Les Pins, St Tropez Apartments Block, Samora Machel Avenue East, Eastlea, Harare failing which the Sheriff for Zimbabwe, or his lawful deputy, duly assisted by the Zimbabwe Republic Police if need be, shall be entitled, directed, authorized and empowered to evict the respondents, and all those claiming occupation through them, from the premises aforesaid, and, as specified below, give vacant possession of the same to the plaintiff:

11.2 W. Magobogobo First Respondent 26 Juan Les Pins.

11.3 P. Mazarire Second Respondent 26A Juan Les Pins.

11.4 E. Maposa Third Respondent 27 Juan Les Pins.

11.5 E. Musonza Fourth Respondent 27A Juan Les Pins.

11.6 R. Katsika Fifth Respondent 28 Juan Les Pins.

11.7 J. Ngulube Sixth Respondent 28A Juan Les Pins.

11.8 E. Musimwa Eighth Respondent 29A Juan Les Pins.

11.9 K. Sibanda Ninth Respondent 30 Juan Les Pins.

11.10 Chipoyera Tenth Respondent 30A Juan Les Pins.

12. The applicant's claim for holding over damages be and is hereby referred to trial in terms of Order 10 Rule 73 of the Rules of this Honourable court.

13. Respondents shall pay the costs of this application on the scale of legal practitioner and client jointly and severally the one paying the others to be absolved.

HH209-15 : NATIONAL FOODS OPERATIONS vs PERFECT BAKERY (PVT) LTD and GIFT MABVUNZA
Ruled By: BHUNU J

This is an application for summary judgment initially brought against both respondents. The first respondent is a company duly registered in terms of the laws of this country whereas the second respondent is its Managing Director.

On 2 June 2014, the applicant issued summons against both accused claiming payment of US$16,817=30 plus 15% interest per annum from 13 January 2014 to date of payment in full with costs at the higher scale. The plaintiff's claim against the respondents was joint and several one paying and the other to be absolved.

The respondents duly entered appearance to defend on 5 June 2014 whereupon the applicant filed this application for summary judgment on 3 December 2014. The matter was then set down for hearing before me on 3 February 2015.

At that hearing, counsel for the applicant withdrew his client's claim against the first respondent on account that they had received written communication that the first respondent had been placed under judicial management. He however persisted with his claim against the second respondent.

Counsel for the second respondent, however, objected to the applicant proceeding against her client on his own. She strenuously argued that the claim being withdrawn cannot proceed against the second respondent alone because when the first respondent was placed under judicial management all claims were stayed. She then applied that the parties be given time to file heads of argument.

Counsel for the applicant countered that the operation of law against the first respondent has no bearing on the second respondent's liability as the applicant's claim was joint and severally one paying and the other to be absolved.

Despite the withdrawal against the first respondent both respondents were already barred for want of compliance with Rule 238(2a) and (2b) upon failure to file heads of argument within the prescribed 10 day period after receipt of the applicant's heads of argument.

The Rule provides as follows:

“(2a) Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent in terms of subrule (1):

Provided that —

(i) No period during which the court is on vacation shall be counted as part of the ten-day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.
[subrule substituted by S.I.192 of 1997]

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.”

Rule 83 prohibits a litigant who has been barred from being heard for any other purpose other than for the upliftment of the bar. It reads:

“83. Effect of bar

While a bar is in operation —

(a) The Registrar shall not accept for filing any pleading or other document from the party barred; and

(b) The party barred shall not be permitted to appear personally or by legal practitioner in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar:”

What this means is that counsel for the second respondent's objection against the applicant proceeding against her client in the absence of the first respondent cannot be entertained as long as the bar is operating against her client. She however appears not to have appreciated the effect of a bar as appears from her response in this respect in which she had this to say:

“Ms Mazhandu: The heads of argument do not take into account the issue of withdrawal. Second respondent should be given a chance to respond to the amended draft order otherwise he shall not have been accorded a fair hearing.

Court: You have not addressed me on the question of the bar operating against your client.

Ms Mazhandu: The 2nd respondent we were no longer representing him I can't for sure say what transpired. I can't dispute there was a bar but the bar was against both respondents. Things have since changed. This is now a different matter.

Court: Does that lift the bar?

Ms Mazhandu: It does not. If the court can allow me to apply for upliftment of the bar.

Mr Stewart: The applicant stands prejudiced. There are no triable issues. The defendants' plea merely indicates that they have been experiencing difficulties in paying the plaintiff. That is no defence. In subsequent correspondence they admit owing the applicant. Heads of argument were filed at the 11th hour. They now seek to uplift the bar.

Ms Mazhandu: I am not privy to any of the correspondence. This matter cannot be finalised on summary judgment. There are so many issues raised. I refer to the notice of opposition; the respondent has a bona fide defence and all the agreements referred to are not part of the record. They are also not part of the applicant's case. I therefore do not see the prejudice if the bar is uplifted.”

The above exchanges make it clear that the application for upliftment of the bar was made as an afterthought without careful consideration of the legal requirements for such an application to succeed.

Where a litigant has been barred, the other party gains an advantage that cannot be easily swept away. Rule 84 provides for the required procedure for upliftment or removal of a bar as follows:

“84. Removal of bar and effect

(1) A party who has been barred may —

(a) Make a chamber application to remove the bar; or

(b) Make an oral application at the hearing, if any, of the action or suit concerned;

And the judge or court may allow the application on such terms as to costs and otherwise as he or it, as the case may be, thinks fit.

(2) The withdrawal or removal of a bar shall not preclude a subsequent bar for subsequent default.”
[Rule substituted by S.I.33 of 1996]

Thus, before the bar can be lifted, the barred party has an onerous duty to justify the upliftment of the bar. Unless the other party consents to the upliftment of the bar, the barred party must apply for the upliftment of the bar, either in writing or orally at the hearing. The application should be supported by an affidavit or some other facts which must:

(a) Give good and sufficient reasons or excuse for the delay.

(b) Sufficiently address the applicant's prospects of success on the merits.

In Markides and Hessam v Levendale 1954 SR 77 BEADLE J…, emphasised the need to satisfy both requirements. In that case, the learned judge rejected as inadequate an averment in an affidavit simply stating that “the defendant's plea disclosed a valid and bona fide defence to the plaintiff's plea.”

Thereafter, he proceeded to remark that in matters of this sort the defendant should set out in his affidavit, briefly, what his defence is, what the facts are on which he relies for his defence, so that the court can form some opinion on the merits of his defence.

It is needless to say that the applicant's application falls far too short of the legal requirements in all material respects insofar as it does not state the reasons for delay and fails to articulate the applicant's prospects of success on the merits. His application amounts to no more than simply stating that he must be accorded his right to be heard otherwise the court would have denied him his Constitutional right to a fair trial.

This argument is untenable in circumstances where he has failed to articulate the basis of his defence. In particular, he dismally failed to deal with and rebut the allegation that his plea raises no triable issue as he admitted liability as alleged.

There is no substance in that complaint because the applicant was accorded the right to be heard and he wasted that chance and has not proffered any reasonable excuse as to why he failed to act within the stipulated time frame.

As previously stated in the original draft, the applicant sought an order against both respondents but has since withdrawn its claim against the first respondent. Consistent with that withdrawal the applicant has now amended its claim to reflect the withdrawal by dropping the first respondent's name from the proceedings. I can perceive no prejudice to the second respondent arising from the withdrawal because he was always liable to pay the full amount claimed as the plaintiff's claim was, right from the onset, joint and severally one paying and the other to be absolved.

The claim being for a debt or liquidated demand, it is competent to award summary judgment in terms of Rule 64. The application can therefore only succeed in terms of the amended draft. It is accordingly ordered:

1....,.

2. That summary judgment be and is hereby entered against the second respondent in the following terms:

(a) The second respondent shall pay the sum of US$16,817=30 (sixteen thousand eight hundred and seventeen United States of America dollars and thirty cents) to the applicant.

(b) The second respondent shall pay interest on the above sum at the rate of 15% per annum from the 13th of January 2014 to the date of payment in full.

(c) The second respondent shall pay costs of suit at the ordinary scale.

HH215-15 : AMIEL MATINDIKE vs DUFFY MITCHELLE PROPERTY INVESTMENTS (PVT) LTD T/A K. M. AUCTIONS and THE SHERIFF OF ZIMBABWE
Ruled By: MUREMBA J

This is an application for summary judgment.

The background of the case is that the applicant, who is the plaintiff in the main matter, issued summons against the respondents. The first respondent entered an appearance to defend whereupon the applicant made the present application for summary judgement stating that the first respondent has no bona fide defence to the action.

The facts of this case are as follows:

In 2012, the first respondent conducted an auction sale of immovable properties in execution of this court's judgments at the instructions of the second respondent. Among the properties auctioned were Stand Numbers 163 Philadelphia Township and 23 Carrick Crescent Hellensvale, Borrowdale, Harare. They were auctioned as Sheriff Sale numbers 1 and 22 respectively.

The highest bids for the respective properties were $192,400 and $12,150 and these bids were made by the applicant. Having been declared the highest bidder, the applicant was made to pay 10% of the bid price to the auctioneer before the confirmation of the sales. The applicant duly paid $19,240 and $1,215 but the sales were subject to confirmation by the second respondent.

However, the second respondent did not subsequently confirm the sales.

For Sale No.1, he said that the highest bid was lower than the forced sale value of the property. By way of a letter dated 17 October 2012, the second respondent directed the first respondent to refund the applicant all his money, including commission, and sell the property by private treaty. When the first respondent did not take heed, the second respondent, on 27 November 2012, wrote yet another letter reiterating that the first respondent was supposed to refund the applicant all the money that he paid.

The Sheriff (second respondent) did not confirm Sale No.22 because the judgment debtor's legal practitioners had objected to the sale. By way of a letter dated 17 October 2012, the second respondent directed the first respondent to refund the applicant all the money that he had paid, including commission. The first respondent did not comply.

On 6 December 2012, the second respondent had to write another letter and in that letter he actually said;

“Please refund him his monies since you are entitled to your commission upon confirmation.”

The applicant's claim is for a refund of the money that he paid as deposit.

The applicant averred that there is no justification for the respondent to refuse to refund the money when the sales did not go through. The applicant also made a prayer for costs on a legal practitioner client scale for abusing court process by defending an action which is so clear. It was further averred that the appearance to defend was entered for the purposes of delaying proceedings.

In opposing this application, the first respondent stated that it conducted the auction in its capacity as an agent, and, as such, was entitled to payment of a commission. It was averred that that money that was paid by the applicant is the commission and not a deposit of the purchase price as the plaintiff was alleging. It was further averred that, as an agent, once it introduced the purchaser, its work was done and was entitled to payment.

The first respondent prayed for the dismissal of the applicant's application with costs on a legal practitioner and client scale on the basis that the application was unwarranted, and, since the applicant was aware of the legal position, he ought not to have made the application.

After the first respondent had filed the notice of opposition and the opposing affidavit the applicant went on to file an answering affidavit without the leave of the court.

However, it is apparent that the applicant was aware of the need to seek the court's leave first before filing the answering affidavit. This is evidenced by the fact that he raised it in his heads of argument - well before the first respondent had raised it in its heads of argument. In his heads of argument, the applicant indicated that the answering affidavit ought to be admitted despite him having flouted the procedure.

In the heads of argument, the first respondent challenged the filing of the answering affidavit by the applicant citing Rule 67(c) of the High Court Rules which states that an answering affidavit in a summary judgment application should be filed with the leave of the court. The Rule reads;

“67. Limitations as to evidence at hearing of application

No evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice, nor may either party cross-examine any person who gives evidence viva voce or by affidavit:

Provided that the court may do one or more of the following —

(a)…,.;

(b)…,.;

(c) Permit the plaintiff to supplement his affidavit with a further affidavit dealing with either or both of the following —

(i) Any matter raised by the defendant which the plaintiff could not reasonably be expected to have dealt with in his first affidavit; or

(ii) The question whether, at the time the application was instituted, the plaintiff was or should have been aware of the defence.”

The applicant's counsel argued that the answering affidavit should be admitted by the court because it was in the interest of justice to do so for it served to demonstrate that the first respondent has no bona fide defence. He went on to cite the case of Scotfin Ltd v Afri Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170 (H) wherein ROBINSON J…, said;

“Let me say, in passing, that I consider that the stage has now been reached where an applicant for summary judgment should always be allowed to file a replying affidavit to show that a respondent's opposition to his application is not bona fide or is ill-founded.”

The applicant's counsel argued that Scotfin Ltd v Afri Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170 (H) marked a departure from the previous position of always requiring the leave of the court to file an answering affidavit.

Scotfin Ltd v Afri-Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170 (H) falls on all fours with the present case in that the applicant in that case had also filed an answering affidavit without the leave of the court. In the heads of argument, the respondent raised a point in limine for the answering affidavit to be struck out on the grounds that it had been filed without the leave of the court. ROBINSON J allowed a departure from Rule 67 in terms of Rule 4C(a) and admitted the answering affidavit on the basis that, at the time the applicant made its application it had no knowledge that the respondent would raise the defence that it raised in the opposing affidavit.

ROBINSON J went on to recommend an amendment of Rule 67. He said:

“In this regard, I can see no good reason for distinguishing, any longer, between an applicant for summary judgment and any other applicant insofar as the filing of a replying affidavit is concerned. Accordingly, I would strongly recommend that our Rules of Court be amended to entitle an applicant for summary judgment to file a replying affidavit if he so elects.”

This was just but a recommendation.

However, it is apparent that despite the recommendation by ROBINSON J, Rule 67 has not been amended to allow an applicant to file an answering affidavit without the leave of the court if he so elects. The Rule still says;

“provided that the court may permit the plaintiff to supplement his affidavit with a further affidavit…,.”

The applicant's counsel submission, that the court's leave is no longer required, is not correct. The leave of the court is still required for the applicant to file an answering affidavit. So before filing the answering affidavit the applicant should have sought the leave of the court first.

The applicant did not proffer any explanation why it did not seek the leave of the court to file the answering affidavit as is required by Rule 67(c). It is clear that the applicant was well aware that he needed the court's leave to do so, but deliberately chose to disregard the Rule and mislead the court by saying that in Scotfin Ltd v AfriTrade Supplies (Pvt) Ltd 1993 (2) ZLR 170 (H) it was said that in summary judgment applications the applicant should always be allowed to file a replying affidavit to show that the respondent's opposition is not bona fide.

As I have already explained above, this was just but a recommendation by the then Judge ROBINSON. The Rule is very clear that the leave of the court should be sought first.

In the absence of a satisfactory explanation for the lack of adherence to the Rule I do not see why I should admit the answering affidavit. In any case, considering the contents of the answering affidavit, there is nothing new that is being raised by the applicant which was not said in its founding affidavit.

I will therefore disregard the answering affidavit.

In an application for summary judgment, the applicant should show that he has an unanswerable claim which is based on a clear cause of action: see Rule 64 of the High Court Rules and also Pitchford Investments (Pvt) Ltd v Muzariri 2005 (1) ZLR 1.

In CABS v Ndahwi HH18-10 MAKARAU JP…, stated that a plaintiff resorting to summary judgment must have an unanswerable claim as pleaded in his summons and declaration and as verified in the affidavit that must be filed in terms of the Rules.

On the other hand, in terms of Rule 66(1), for the court to dismiss an application for summary judgment the defendant must satisfy the court that he has a good prima facie defence to the action.

In Hales v Daverick Investments (Pvt) Ltd 1998 (2) ZLR 234 (H) it was held that [headnote];

“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 the trial. He does not have to set out the facts exhaustively but he must set out the material facts upon which he bases 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 generalisations or to provide bald and sketchy facts.”

In Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Another HH64-10, as per MAKARAU JP…, it was stated that in an application for summary judgement the defendant must raise a defence, but he does not have to prove it. In raising the defence, he must merely allege facts which, if he can succeed in establishing them at trial, would entitle him to succeed at the trial. The defence must be plausible and bona fide. It must meet the claim squarely and must amount to a defence at law. If it does not, the defendant would not have discharged the onus on him and summary judgment must be granted.

As correctly submitted by the applicant's counsel, the facts of this case are common cause. Initially, in the opposing affidavit and in the heads of argument, the first respondent stated that it conducted the auction in its capacity as an estate agent. However, during the hearing, the first respondent's counsel wisely abandoned that argument and admitted that the first respondent conducted the auction as an auctioneer.

It is a fact that the first respondent was engaged by the second respondent to sell these immovable properties pursuant to some judgments of this court. The second respondent therefore employed the first respondent in his capacity as the executing arm of this court. It follows therefore that the sale of the properties was governed by the rules of this court, that is, the High Court Rules of 1971.

By virtue of Rule 350A, the first respondent was nominated by the second respondent to conduct the sale as an auctioneer, and, in terms of Rule 354, the sale was done by public auction.

Rule 353 states that the conditions of sale are prepared by the Sheriff.

In terms of Rule 356, if the Sheriff is satisfied that the highest price offered is reasonable he shall declare the highest bidder to be the purchaser - subject to confirmation of the sale.

In terms of Rule 359(1), any interested parties may raise objections against the sale. In terms of Rule 359(7), upon hearing the objecting parties, the Sheriff shall either, in terms of Rule 359(7)(a), confirm the sale, or, in terms of Rule 359(7)(b) “cancel the sale and make such order as he considers appropriate in the circumstances and shall, without delay, notify the parties in writing of his decision.”

What is apparent from Rules 356 and 359 is that the sale is not completed or finalised at the time the highest bidder is declared the purchaser, but after the Sheriff has confirmed the sale. If he decides to cancel the sale, he makes an order as he considers appropriate.

In resisting the application, counsel for the first respondent submitted that the first respondent has a bona fide defence in that it was entitled to its commission because the law relating to auctioneers and estate agents is the same according to CHRISTIE, Business Law in Zimbabwe.

Counsel for the first respondent argued that the first respondent's basis for refusing to refund the applicant was that it had substantially performed its mandate, that of introducing the purchaser (applicant) to the second respondent. It was argued that that the sale was later not confirmed is neither here nor there. The job that the first respondent had done entitled it to a commission because the contract was created when the applicant accepted the bid.

Counsel for the first respondent further submitted that with the Sheriff's sale, the Sheriff (second respondent) has standard conditions for all auctioneers he appoints to conduct the sales. He said the Sheriff has a document which says that the purchaser will be liable to pay the commission. He also said that it is not a condition of the sale that money paid would be refunded.

However, counsel for the first respondent did not attach the document in question.

It would have been most helpful if counsel for the first respondent had attached the Sheriff's document which sets out the conditions of sale instead of just making submissions from the Bar without any document to back them.

As correctly submitted by counsel for the applicant, counsel for the first respondent was essentially leading evidence from the Bar.

However, I would like to believe that counsel for the first respondent was correct in his submission that with the Sheriff's sale it is a condition of the sale that the burden of paying commission to the auctioneer, and other selling costs, lies with the purchaser or the successful bidder and not with the Sheriff - even if the auctioneer is an agent of the Sheriff.

My conclusion is based on the letters which were written by the second respondent (Sheriff) to the first respondent wherein he was instructing the first respondent to refund the applicant all his money - including commission.

However, it is a settled position of the law that in an auction sale commission is only payable to the auctioneer upon the property being sold.

In Crusader Real Estate Consultancy (Pvt) Ltd v CABS 1999 (2) ZLR 257 (S) EBRAHIM JA quoted with approval the words of BRISTOW J in the case of Martin v Currie 1921 TPD 50…, to the effect that;

“I think it is clear that the employment of an auctioneer does not give him any authority except to sell by auction. The case of Muller v Kemp (1 Searle 167) was cited to us, which, on the facts, is not in point, but, the court there cited, with approval, a passage from Storey on Agency which states that the agency of an auctioneer ends as soon as the auction is held. An auctioneer is employed to sell property by auction on the conditions arranged; if he sells the property he gets his commission: if he does not sell the property he gets no commission.”

Even DENNING LJ…, in John Meacock & Co (a firm) v Abrahams (Loescher Third Party) [1956] 3 ALL ER 660 confirmed this position of the law when he said;

“I sometimes think it would be a good thing if auctioneers and estate agents, if a sale did not go through, stipulated for a reasonable remuneration for their time and labour; but, I suppose, that would not be good business. They always claim to be entitled to full commission; and, by so doing, take their chance on the sale going through to completion.”

In casu, the letters which were written by the second respondent to the first respondent also confirm this position of the law.

After he had cancelled Sale No.1, in a letter dated 17 October 2012, he wrote to the first respondent to the effect;

“Kindly sell the above immovable property by private treaty and refund all monies paid to yourselves, including commission, to the auction purchaser.”

In respect of Sale No.22, the Sheriff, in a letter dated 17 October, wrote to the first respondent;

“Please be advised that there is an objection to confirmation of the purchase price by the judgment debtor's legal practitioners, Messrs IEG Musimbe & Partners. The auction purchaser now wants to pull out of the sale, I therefore request you to refund all monies, including the commission paid, to the purchaser.”

Despite this order by the Sheriff, the first respondent still refused to refund the applicant. This prompted the second respondent to write another letter on 6 December 2012 directing the first respondent to refund the applicant all monies paid as commission. The concluding paragraph reads;

“Please refund him his monies since you are entitled to your commission upon confirmation.”

The position of the law being that the auctioneer is only entitled to his commission upon the property being sold, it was therefore imperative for the first respondent to attach the Sheriff's document which set out the conditions of the sale in order to show that in setting out the conditions of the sale the Sheriff allowed a departure from the settled position of the law by saying that it was a condition of the sale that the highest bidder was not entitled to a refund even if the sale was not confirmed by the second respondent and that the auctioneer was supposed to get his commission even if the sale did not go through.

In Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Another HH64-10 MAKARAU JP…, stated that the defence that is raised by the respondent must be plausible and bona fide. It must amount to a defence at law. If it does not, the defendant would not have discharged the onus on him and summary judgment must be granted.

In casu, in the absence of the relevant Sheriff's document to support the submissions made by counsel for the first respondent, I cannot say that the first respondent raised a bona fide defence for its defence does not amount to a defence at law. At the same time, it does not make sense that the second respondent would then contradict himself by instructing the first respondent to refund the applicant in light of its standard document which sets out the conditions for auction sales.

I will seal this case by citing the case of Time Bank of Zimbabwe Ltd v Culroy Farm (Pvt) Ltd & Others HH182-03. In that case it was held that in an application for summary judgment all the defendant has to do to resist it, is to raise a prima facie defence. He has to establish a mere possibility of his success or that he has a plausible case or that he has a triable issue or that there is a reasonable possibility that an injustice might be done if summary judgment is granted.

In suing the defendants for a debt, the plaintiff Bank produced a written acknowledgement of debt, written guarantees of the first defendant's debt by the co-defendants, and the first defendant's bank account transactions.

In opposing the application for summary judgment, the defendants said that they were no longer indebted to the plaintiff and even made averments that in fact it was the plaintiff which owed them money. However, the defendants did not produce any documents to support their averments and their figures made no sense at all.

It was held that without any documents to support the defendant's defence, the court was bound to conclude that the alleged defence was not bona fide. It was said that bald allegations and figures should be discouraged in such applications.

In casu, as is required by the law, the applicant managed to establish that he has an unanswerable claim and a clear cause of action. On the other hand, the first respondent failed to discharge the onus that it had to show that it has a good prima facie defence.

Counsel for the applicant argued for costs on a legal practitioner client scale stating that the first respondent ought to be penalised for disrespecting the court by raising a frivolous defence to the application.

Counsel for the first respondent opposed such costs arguing that the first respondent had put up an arguable case as it genuinely believed that, as an agent, it had carried out its mandate of introducing the purchaser to the second respondent, and, as such, it was entitled to remuneration.

I am inclined to agree with counsel for the applicant that the defence raised by the first respondent is frivolous - and it even knew it. The instructions by the Sheriff to refund the applicant's money were clear, but the first respondent continued to be stubborn. Costs on a higher scale are warranted under the circumstances.

In the result, the application for summary judgment is granted with costs on the legal practitioner-client scale.

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal on the following grounds;

1. The court a quo erred in dismissing the application for condonation thereby unprocedurally hearing the matter unopposed.

2. The court a quo misdirected itself in finding that the appellant did not satisfy the requirements for condonation.

3. The court a quo erred in finding that the appellant did not have a bona fide defence to the application for vindication.

4. The court a quo erred in finding that the respondent had made a case for summary judgment.

While the appellant has listed four appeal grounds, they are clearly repetitive. Only two issues have to be determined in this appeal. They are:

(a) Whether the court a quo erred in dismissing the appellant's application for condonation and the upliftment of the bar; and

(b) Whether the court a quo erred in granting summary judgment....,.

I move on to consider whether the court a quo erred in granting summary judgment in favour of the respondent.

The court a quo found that the appellant does not have a bona fide defence to the respondent's claim for vindication simply because the rights of the parties to the property had already been determined by that court previously. It found that the appeal against that judgment had been determined without upsetting the previous determination of the court a quo.

Counsel for the appellant maintained, on appeal, that the main reason for opposing the application for summary judgment was that it was made prematurely when there was still an appeal to this Court by Karuwa and Associates. She acknowledged that the said appeal had long been finalised, by consent, at the time of hearing the application. However, she submitted that the consent order of this court settling the appeal should not have been produced before the court a quo because Rule 67 of the High Court Rules proscribes the adducing by the respondent of further evidence otherwise, than by the founding affidavit.

There is no merit in that submission.

The court a quo was entitled to take judicial notice of the consent order settling the appeal in determining the matter. The existence of the consent order was a matter of public record which cannot be equated to adducing of further evidence within the meaning of Rule 67.

In this case, it was used to debunk what was regrettably a false defence relied upon by the appellant - that there was an appeal pending when there was none.

There can be no doubt that the appellant did not point to any bona fide defence to the respondent's claim or to any triable issue as would dissuade the court a quo to grant summary judgment.

While summary judgement is an extraordinary remedy given that it deprives a litigant, desirous of defending an action, the opportunity to do so without regard to the audi alteram partem rule, it has always been granted by the courts to an applicant possessing an unassailable case. It is trite that such an applicant should not be delayed by resort to a trial whose outcome is a foregone conclusion. It is also trite that in order to defeat an application for summary judgment, a respondent must set out a bona fide defence with sufficient clarity and completeness to enable the court to decide whether the opposing affidavit discloses facts which, if proved at the trial, would entitle the respondent to succeed. See Kingston Ltd v L D Inesons (Pvt) Ltd 2006 (1) ZLR 45 (S)…,.

The appellant's brief opposing affidavit does not even begin to meet that threshold.

The court a quo was certainly entitled to grant summary judgment. The appeal is entirely without merit.

In his heads of argument, counsel for the respondent asked for costs de bonis propriis on the higher scale against the appellant's legal practitioners. At the hearing of the appeal he did not motivate costs of that nature.

This Court is unable to find any basis for awarding such costs although the court finds no reason why costs should not, as is the norm, follow the result.

In the result, it is ordered that:

1. The appeal is hereby dismissed.

2. The appellant shall bear the costs.

HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP
Ruled By: CHIKOWERO J

This is an opposed summary judgment application.

The law on the relief of summary judgment is settled.

In sum, it is to enable a plaintiff with a clear case to obtain quick judgment against a defendant who has no real defence against the claim.

The plaintiff's claim must be unanswerable both on the facts and the law.

To successfully repel such an application, the defendant must establish that he has a good prima facie defence.

The defendant must show that there is a mere possibility of his success at the trial; that he has a plausible case; or that there is a real possibility that an injustice may be done if summary judgment is granted.

These principles have been set out in a plethora of cases including Chrismar (Pvt) Ltd v Stutchbury 1973 (1) RLR 277; Bubye Minerals (Pvt) Ltd and Another v Rani International Ltd 2007 (1) ZLR 22 (S); and Zimplastics (Pvt) Ltd v Corbett 2014 (1) ZLR 68 (H).

The applicant issued summons against the respondent seeking to recover the sum of US$194,302=11 being the balance alleged to be due to him in terms of a compromise agreement entered into between the parties.

The applicant obtained a judgment of this court in terms whereof the defendant was to pay to the former the sum of US$3,872,123 plus interest and costs on the higher scale.

In light of the applicant granting the respondent a stay of execution, so the former claims, the parties agreed that the latter would, instead of the judgment debt, pay the agreed sum of US$5,000,000 in full and final payment.

The summons claims the difference between the judgment debt and the sum of US$5,000,000. The summons also claims interest and costs.

It is this summons which gave birth to the summary judgment application....,.

I am not satisfied that this is a suitable case for the granting of summary judgment. I am not satisfied that the applicant's claim is unanswerable.

The applicant is relying on a verbal agreement of compromise.

The existence of such an agreement is disputed by the respondent.

A draft settlement agreement, prepared by the applicant's legal representatives, was sent to the respondent for signature. It increased the respondent's indebtedness from the amount granted in the judgment aforesaid to US$5,000,000.

The respondent never signed it.

The supporting affidavit deposed to by the applicant's legal practitioner did not mention that US$5,000,000 was the compromise amount agreed to between the parties.

The applicant's own legal practitioner, in that supporting affidavit, contended himself with stating the following in paragraphs 3 and 4:

“3. In or around 1 February 2017, I received a telephone call from Innocent Chagonda of Messrs Atherstone and Cook. The phone call was a reaction to a letter I had generated threatening execution. He told me that he had received RTGS payments into his firm's trust account.

4. He undertook to pay the agreed sum to the trust account of Messrs Venturas and Samukange's trust account once the funds had cleared.”

This deponent is expected to be privy to the quantum of the indebtedness agreed to. He does not state that amount.

On 3 February 2017, Advocate Thabani Mpofu, instructed by the applicant's legal practitioners, wrote an email to Mr Innocent Chagonda splitting the sum of US$5 million into portions of US$3.8 million and US$1.2 million. He provided the bank accounts into which each portion had to be paid into.

This may suggest that the parties had agreed to the respondent paying the sum of US$5 million to the applicant in full and final payment.

So too does Atherstone and Cook's letter, of 2 February 2017, wherein it was acknowledged that two RTGS payments of US$4 million and US$1 million had been effected to the credit of the author's trust account.

The letter was addressed to the applicant's legal practitioners.

It was a response to the applicant's legal practitioners' own letter of the same date. Neither party produced this particular letter.

Two further considerations, in my view, dissuade me from finding the applicant's claim as unanswerable. They are the following;

If the indebtedness had been compromised at US$5 million, in full and final payment, there would have been no need for the parties to have costs of suit taxed.

Such costs were not only taxed; the amount allowed on taxation was taken up on review before a judge of this court. The judge allowed the application for review. His decision was appealed to the Supreme Court.

The respondent's letter of 9 September 2016, to the applicant, was attached as annexure “C” to the summary judgment application. It was attached as evidence that the parties agreed that the respondent withdraws his appeal to the Supreme Court against this court's judgment ordering payment of the sum of US$3,872,123 plus interest and costs on the basis of the parties' agreement that the respondent would pay US$5 million in full and final payment instead.

Paragraph 10 of the founding affidavit states in this regard:

“10. On 9 September 2016, the respondent wrote me a personal letter which I annex hereto as annexure “C”. The respondent agreed to drop his appeal to case number HC8103/2014 pending in the Supreme Court and to pay me all that was due by 31 January 2017 being a compromised sum of US$5,000,000 (five million United States dollars).”…,.

Quite clearly, the underlined portion is a misrepresentation of annexure “C.”

It is not necessary that I reproduce the entire contents of that annexure. It suffices that I record that in annexure “C” the respondent pleaded for a three-month grace period to raise funds to liquidate his indebtedness in terms of the High Court judgment. He states, in paragraphs 2 and the last paragraph of annexure “C”:

“…, for this reason, I am willing to drop my appeal so that the order that was made by the High Court stands.

I will then put in place mechanisms in terms of which you will be paid the full amount by 31 January 2017. To this end, I would require that we agree that the execution of this judgment be suspended until 31 January 2017 by which time I confident you would have been paid…,.

…, considering that you have waited quite long and that interest will continue to run on the capital, I think that a delay of 3 months will not necessarily prejudice you any further. Please let have (sic) from you.”

The response to this letter, if any, was not placed before me.

The applicant's case cries out for trial. It leaves more questions than answers at this stage. A trial will redress all that.

Quite clearly, the respondent's defence, that there was no compromise agreement to pay US$5 million, is prima facie good and plausible. There is nothing to indicate it as not bona fide.

Both parties asked for costs on the punitive scale. I am not satisfied that costs on that scale are justified.

In the result, I order as follows:

1. The application for summary judgment is refused.

2. The matter under case number HC1245/18 shall proceed in accordance with the High Court of Zimbabwe Rules, 1971.

3. The applicant shall pay the costs of this application.

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU
Ruled By: MAKONESE J

The applicant purchased House Number 24733 Gundwane Road, Pumula North, Bulawayo, at a public auction on 2 October 2013. The sale was conducted by the Deputy Sheriff Bulawayo pursuant to a judgment debt against the respondent involving a third party.

The applicant duly paid the purchase price in the sum of US$12,000 and the Deputy Sheriff proceeded to effect cession of the property into the applicant's names. The rights title and interest to and in the property have been transferred to the applicant.

The respondent has refused to vacate the property and is not paying rentals to the applicant.

The applicant issued summons against the respondent, on 22 September 2014, seeking the respondent's eviction and all those claiming occupation through him from the property.

The respondent entered appearance to defend on 8 October 2014.

The applicant has filed this application for summary judgment contending that the respondent has no bona fide defence to her claims and that appearance to defend has been entered for the sole purpose of delay.

The applicant avers that she has a clear and unanswerable claim. The property was lawfully purchased and she has received transfer of all the rights, title and interest in and to the property. Further, the applicant contends that the respondent failed to challenge the validity of the sale, which was duly confirmed by the Deputy Sheriff.

In his papers in opposition, the respondent alleges that he has a valid defence to the applicant's claims.

The respondent confirms that the property in issue was sold at a public auction in a sale in execution. The respondent alleges that when the process of attaching the property was underway he was away at his rural home in Silobela. He was not aware that summons had been issued against him and that a writ of execution against his immovable property had been issued. He only became aware of the sale in execution in October 2013 when the applicant informed him that she had purchased the property.

The respondent states that he has filed an application to rescind the default judgment obtained against him.

The application for rescission of judgment was filed in December 2012. No further explanation is forthcoming from the respondent regarding the fate of that application for rescission of judgment.

The respondent alleges that he has a defence against the action brought against him by one Moses Mazithulela which resulted in the default judgment and the sale in execution. The respondent further alleges that the respondent filed an application for rescission of judgment before the applicant purchased the property.

A bold averment is made by the respondent that the applicant must have been aware of the respondent's application for rescission of judgment and that she took a risk in purchasing the property at a public auction.

Analysis of the Law

It is my view that an innocent party who purchases a property at a public auction duly advertised by the Deputy Sheriff, and who lawfully purchases a property and fulfills all the conditions of sale by paying the purchase price, and subsequently receiving transfer, is entitled to the protection of the law.

The innocent purchaser should not concern himself with the dispute between the debtor and the creditor which results in the sale in execution.

By its very nature, a sale in execution, in pursuance of a debt, is a mechanism designed to compel a debtor to fulfill his obligations. The sale is not conducted voluntarily but under the force of the law. The debtor will invariably seek to escape the inevitable consequences of the sale in execution by seeking a rescission of judgment or challenging the validity of the sale.

The legal position regarding the rights of parties, after a sale has been conducted and confirmed by the Deputy Sheriff, and where transfer has already been effected to the third party, was canvassed in the case of Chiwadza v Matanda and Others 2004 (2) ZLR 203 (H).

In this matter, MAKARAU J held that after the sale has been confirmed and transfer has been effected to the purchaser, an interested party may still approach the court, at common law, to have the sale set aside, but not on the grounds of alleged violations of the rules of court nor on the general grounds of review at common law. The sale cannot be impeached in the absence of an allegation of bad faith, or knowledge of prior irregularities in the sale, or fraud. This is so because of the protection our legal system affords the innocent third party in commercial transactions.

See also the case of Mupedzamombe v Commercial Bank of Zimbabwe and Another 1996 (1) ZLR 257 (S).

WHETHER APPLICANT HAS MADE A CASE FOR SUMMARY JUDGMENT

In making an application for summary judgment, the applicant is required to verify his cause of action and state that in his belief the respondent has no bona fide defence to the action.

In terms of Order 10 Rule 64(2) and (3) of the High Court Rules, 1971 the applicant has attached an affidavit supported by documents which indicate that the applicant purchased the property at a public auction. The documents further confirm that the applicant paid the required purchase price. The documents further indicate that title in respect of the immovable property has been effected into the applicant's names.

The applicant has indeed verified the cause of action. The applicant has made out a clear case that she has lawfully acquired the right to the use and enjoyment of the property in dispute. She is the lawful owner of the property.

WHETHER RESPONDENT HAS RAISED A BONA FIDE DEFENCE TO THE CLAIMS

In determining an application for summary judgment, the test is whether the respondent is bona fide in advancing his defence and whether it can possibly succeed. Further, the balance of prejudice has to be in the respondent's favour.

In the case of Jena v Nechipote 1986 (1) ZLR 29 (SC), the court stated that all that the defendant has to establish in order to succeed in having an application for summary judgement dismissed is that:

(i) There is a mere possibility of success.

(ii) He has a plausible case.

(iii) There is a triable issue.

(iv) There is a reasonable possibility that an injustice may be done if summary judgment is granted.

The respondent does not satisfy any of the above requirements.

The respondent has neither challenged the validity of the sale nor challenged the rights of the innocent purchaser. The respondent is required to allege facts which, if proved at the trial, would entitle him to succeed in his defence. Although the respondent does not have to set out the facts exhaustively he must set out material facts upon which his defence is premised with sufficient clarity to allow the court to decide whether these facts constitute a valid defence to the claim. It is not sufficient for the respondent to advance vague generalisations and bald and sketchy details: see the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H).

The respondent, in my view, does not have a bona fide defence to the applicant's claims.

The facts which led to the house being sold in execution have nothing to do with the applicant who is an innocent purchaser. I have already set out the legal routes available to an individual whose property has been sold in execution and where transfer has already been effected into the names of the innocent purchaser. If the respondent was diligent enough he should have made an urgent application to stop the sale of the property.

He failed to do so.

Even so, after the sale was conducted, the respondent could have made an application for the sale not to be confirmed.

The respondent did not do so.

The story by the respondent, that he did not receive the summons, is unbelievable, regard being had to the fact the sale was advertised in the newspapers as required by law. The application for rescission of judgment, which the respondent seems not very keen to conclude, has no effect on the application for summary judgment.

The respondent has no legal basis to justify his continued occupation of the house - rent free.

I have no difficulty in concluding that the respondent has no recognizable defence, neither are there any triable issues. The respondent's defence is a delaying tactic which is designed to frustrate the applicant from taking over occupation of the property. The plaintiff's claim is unanswerable and she is entitled to summary judgment with costs on a punitive scale:

I accordingly order as follows:

1. The respondent be and is hereby ordered to vacate the premises at Stand 24733 Gundwane Road, Pumula North, Bulawayo, and all those claiming occupation through him, forthwith.

2. The respondent pays the sum of US$200 (two hundred dollars) being monthly rentals from 10 December 2013 to date of eviction.

3. The respondent pays costs of suit on an attorney and client scale.

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.The claim against the appellant arose from a Service Provider Agreement concluded ...

The claim against the appellant arose from a Service Provider Agreement concluded between the parties on 10 March 2006 (the Agreement). The Agreement required the appellant to pay the sums due thereunder within thirty days of receiving the respondent's invoices.

It is common cause that the appellant owed the respondent the outstanding amount claimed as at 30 September 2010.

The respondent issued summons on 16 November 2010, and, following the appellant's appearance to defend, applied for summary judgement on 14 February 2011.

The court a quo held that the respondent's claim was unimpeachable and that the appellant had no plausible defences to the claim. In particular, the court found that there was no supervening impossibility due to the currency regime changeover between January and March 2009, entailing any objective impossibility of recovering debts from the appellant's customers. Additionally, there was no condition precedent in the Agreement that those customers should first pay the appellant before it became obliged to pay the respondent. Lastly, there was no principal and agent relationship between the parties to preclude the recovery of payments from the appellant upon presentation of the respondent's invoices.

The grounds of appeal herein arise from the defences raised in the High Court, viz: supervening impossibility of performance, recovery from customers as a condition precedent for payment, and the existence of a principal and agent relationship between the parties.

In essence, the question to be determined is whether the learned judge was correct in holding that the respondent's claim was unassailable and that the appellant had no bona fide defences to that claim....,.

GROUNDS OF APPEAL

The grounds of appeal set out in the notice of appeal appear to have conflated the three defences raised in the court a quo.

The essence of these grounds is that the relationship between the parties, based on their conduct after the inception of the Agreement, was one of principal and agent, whereby the appellant was an agent of the respondent in sourcing customers for post-paid cellular airtime usage, collecting payments for the airtime used or sold, and then remitting payments to the respondent after deducting its commission.

Consequently, since payments to the respondent would only be due upon the appellant recovering the same from its customers, payment by the latter was a condition precedent to any payment to the respondent. This applies to the entire amount of US$8,330,470=52 claimed by the respondent.

Again, on the same footing, the appellant's failure to recover the payments from its customers constituted a supervening impossibility suspending the appellant's obligation to remit payments to the respondent, there being nothing to remit until such time as payments had been made by or recovered from the customers.

PRINCIPAL AND AGENT RELATIONSHIP

The appellant's position, as I understand it, is as follows:

Although not expressly stated in the Agreement, the common understanding of the parties was that the appellant would be paid by its customers for network service usage and would then deduct its commission and pass on the balance to the respondent.

This position appears to be buttressed by paragraph 3 of the respondent's declaration which states that the appellant would collect payments for airtime used by its customers and remit the collected amounts less its commission to the respondent.

In this connection, counsel for the appellant submits that the Court must look at the true nature and substance of the Agreement and not merely at its form. The description of the parties contained in the Agreement is not necessarily conclusive as it disguises the true nature of their principal and agent relationship.

I note in this regard the remarks of SILKE: The Law of Agency in South Africa (3rd ed.)…, where the learned author adverts to the difficulties in ascertaining the true nature of an agency relationship.

Turning to the provisions of the Agreement itself, clause 2 thereof sets out the principal rights and obligations of the parties.

The respondent undertakes to supply and distribute terminal equipment and network services to the appellant's customers (clause 2.1). In turn, the appellant may from time to time order and purchase quantities of smartcards from the respondent (clause 2.2.1). The respondent is then obliged to make the network service available to the appellant for onward supply to the appellant's customers (clause 2.2.2 as read with clause 6.1). The smartcards ordered and purchased by the appellant are allocated by it to its own customers (clause 4.1). The appellant is liable to the respondent for all charges generated in respect of each smartcard activated by the appellant with effect from the date of such activation (clauses 4.5.1 and 4.5.2). The respondent is then entitled to raise call charges, monthly service charges, and all other charges for the account of the appellant (clause 8.1). Thereafter, all charges invoiced by the respondent to the appellant shall be paid by the appellant to the respondent within 30 days of the date of the relevant tax invoice (clause 8.3).

My reading of the afore-cited provisions of the Agreement is that they clearly spell out the true nature of the relationship between the parties.

In essence, it was agreed that the appellant would go to the airtime market and source its own customers for the network services to be provided by the respondent. The respondent did not decide who those customers would be or which of them would receive network service on credit. More significantly, it was the appellant itself that carried the risk of default by its customers.

As was quite correctly conceded by counsel for the appellant, the respondent had no right, except where this was ceded to it by the appellant, in terms of clause 17.1, to sue the appellant's customers in order to enforce and collect any payments due and outstanding from them. There was simply no nexus or privity of contract between the respondent and the appellant's customers. If the appellant was merely an agent for the respondent, as its principal, those customers would have been directly liable to the respondent.

The apparent admission of agency emanating from paragraph 3 of the respondent's declaration is not, in my view, of any material significance.

The importance of pleadings should not be unduly magnified so long as there is no likelihood of prejudice being occasioned to any of the parties. While the parties should ordinarily be restricted to the averments in their pleadings, the courts should not enslave themselves to the pleadings in complete disregard of their duty to decide the real dispute between the parties so that justice is eventually attained.

See, in this context, the very pertinent observations of CHATIKOBO J in Musadzikwa v Minister of Home Affairs & Another 2000 (1) ZLR 405 (H)…, and the authorities there cited, which were subsequently applied by this Court, per ZIYAMBI JA in Moyo & Another v Intermarket Discount House Ltd 2008 (1) ZLR 268 (S)…,.

In short, pleadings cannot be construed so as to compromise the delivery of justice.

In the instant case, although paragraph 3 of the declaration is somewhat ineptly worded, it cannot be elevated above the entire declaration and the clear terms of the Agreement itself.

In any event, that paragraph makes explicit reference to the Agreement itself. More importantly, it is immediately followed by paragraph 4 which captures the essence of the appellant's obligation to pay in terms of the Agreement, i.e. to make payment for all charges within thirty days of receiving the respondent's tax invoice.

Having regard to the Agreement as a whole, I am unable to discern from its express provisions anything approximating the principal and agent relationship espoused by the appellant. It was clearly contemplated by the parties that the appellant would be engaged as an independent contractor to distribute to its own customers the network services provided by the respondent.

CONDITION PRECEDENT FOR PAYMENT

The supposed common understanding between the parties is also relied upon by the appellant as the basis for its contention that payment by its customers was a condition precedent to any payment becoming due to the respondent.

Although this contention flies in the face of the express provisions of the Agreement, it is one that the appellant intends to substantiate by extrinsic evidence to be adduced should the matter be allowed to proceed to trial.

As is correctly argued by counsel for the respondent, this is clearly impermissible by virtue of the so-called parole evidence or integration rule.

Generally speaking, although the integration rule may not invariably apply where the true nature of an agreement is in issue, extrinsic evidence cannot be allowed to negate the express and clear terms of the agreement: see the remarks of ZIYAMBI JA in Nhundu v Chiota & Another 2007 (2) ZLR 163 (S)…,.

This is particularly so where, as in this case, the agreement constitutes the entire contract between the parties (clause 20.3) and any variation, addition, deletion, or waiver is ineffective unless reduced to writing and specifically subscribed by the parties (clause 20.5).

SUPERVENING IMPOSSIBILITY

The final defence advanced by the appellant is that of supervening impossibility – that, its failure to recover payments from its customers constituted a supervening event suspending its obligation to remit payments to the respondent.

This was occasioned, so it is argued, by the advent of dollarization between January and March 2009 when, for some unexplained reason, a significant number of the appellant's customers defaulted on their payments.

It is trite that the courts will be astute not to exonerate a party from performing its obligations under a contract that it has voluntarily entered into at arms length. Thus, the suspension of a contractual obligation by dint of vis major or casus fortuitus can only be allowed in very compelling circumstances.

The courts are enjoined to consider the nature of the contract, the relationship between the parties, the circumstances of the case, and the nature of the alleged impossibility: see Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe 2006 (1) ZLR 9 (S)…,.

In particular, it must be shown that the impossibility is objective and absolute in contradistinction to one that is merely subjective or relative: see Chiraga v Msimuko 2002 (2) ZLR 368 (H)…, where it was held that shortage of foreign currency did not constitute an absolute supervening impossibility.

Again, the contract must have become finally and completely impossible of performance as opposed to the situation where one party is only temporarily disabled from fulfilling its obligations: see Beretta v Rhodesia Railways Ltd 1947 SR 48…,; NUST v NUST Academic Staff & Others 2006 (1) ZLR 107 (H)…,; Mutangadura v TS Timber Building Supplies 2009 (2) ZLR 424 (H)…,.

In the instant case, the appellant has dismally failed to demonstrate why its customers failed to meet their bills and how that alleged failure necessarily and definitively precluded it from meeting its payment obligations aliunde or from recovering the outstanding amounts from its customers at some later stage.

In other words, the appellant's subjective inability to pay its debts cannot be confused with the objective impossibility that must prevail for its plea of supervening impossibility to succeed.

AVAILABILITY OF BONA FIDE DEFENCE

It is apparent, from all of the foregoing, that the appellant has not been able to proffer any plausible defence to the respondent's claim. The court a quo was therefore perfectly correct in concluding that the appellant had no bona fide defence to the respondent's unassailable claim for summary judgment.

In the result, the appeal must fail and it is accordingly dismissed with costs.

HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO
Ruled By: MUTEMA J

On 29 March 2011 I dismissed, unconditionally, an application for summary judgment by the applicant.

On 4 May 2011, I dismissed a chamber application for leave to appeal to the Supreme Court against the order dismissing the application for summary judgment. The application for the leave to appeal had been made pursuant to section 43(2)(d) of the High Court Act [Chapter 7:06]. That provision states that:

“(2) No appeal shall lie –

(a)…,.

(b)…,.

(c)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court…,.”

I dismissed the application for leave on the basis of the provision of section 43(2)(b) of the of the High Court Act [Chapter 7:06] which provides:

“(2) No appeal shall lie –

(a)…,.

(b) From an order of a judge of the High Court in which he refuses an application for summary judgment and gives unconditional leave to defend an action;”

In view of the clear and unambiguous provisions of section 43(2)(b) of the High Court Act, and the fact that my order was one dismissing an application for summary judgment wherein I gave unconditional leave to the respondent to defend the action, that order is not subject to any appeal and section 43(2)(d) of the High Court Act does not apply.

Even the Supreme Court cannot grant leave to appeal against such an order.

The provisions in section 43(2)(b) of the High Court Act [Chapter 7:06] have been literally interpreted in a number of precedents.

In Haulage (Pvt) Ltd v Mumurgwi Bus Service (Pvt) Ltd 1980 (1) SA 729 (ZRA), the court, in interpreting section 31(1)(b) of the predecessor High Court Act [Cap 14] (ZR) whose provisions fell on all fours with those in our current section 43(2)(b) of the High Court Act [Chapter 7:06] held that, in providing in section 31(1)(b) of the High Court Act [Chapter 14] (ZR), that no appeal shall lie from an order of a judge of the General Division giving 'unconditional leave to defend an action', the Legislature intended to refer only to the granting of unconditional leave to defend in summary judgment proceedings in terms of what are now Rules 69 and 70 of the Rules of the High Court (Order 10 of the High Court (General Division) Rules in Rhodesia Government Notice 995 of 1971).

Implicity, from the provisions of section 31(1)(b) of [Cap 14], where conditional leave to defend is granted in summary judgment proceedings, the right of either party to appeal is restricted to a right of appeal (with leave of the court under section 31(1)(b)) only against the conditions imposed.

Pertinent to note here is that the provisions of section 31(1)(b) of the then [Cap 14] are similar to those of section 43(2)(b) of the present High Court Act and Rules 69 and 70 of Order 10 of the High Court Rules 1971 are also still the same: see also Howff (Pvt) Ltd v Tromp's Engineering (Pvt) Ltd 1977 (2) SA 267 (R); Rheeder v Spence 1971 (1) SA 1041 (R).

In spite of the plain language of the relevant legislation and case law cited above, to the effect that refusal of an application for summary judgement, coupled with unconditional leave to defend an action, is not appealable, the applicant's legal practitioner, following my refusal of leave to appeal, has since noted an appeal to the Supreme Court against my order refusing summary judgment.

Whence he got the leave to lodge such appeal is alien to the applicable law.

He has now requested for written reasons for my order of 29 March 2011 to enable him to prosecute his appeal.

It is not for me to withhold them in spite of the law saying no such appeal shall lie from such an order. Those reasons are herewith provided.

In the summary judgment application, paragraph 1 of the draft order is couched thus:

“1. Summary judgment be and is hereby entered in favour of the applicant against the respondent for the ejectment of the respondent and all persons claiming occupation through him from the immovable property known as No.251 Wary Avenue, Bindura.”

This is one of scores of similar cases wherein the respondents, just like the present respondent, are ex-employees of the applicant whom the applicant is seeking to evict from the several company houses on the basis that the respondents were tenants, and, since their employment with the applicant has terminated they must vacate the houses.

Just like other respondents, the respondent herein argues that the applicant sold the house to him and he has since paid off the full purchase price while he was still an employee, hence, the applicant cannot legally evict him.

The circumstances surrounding the case are somewhat queer.

What is common ground is that the applicant anticipated closure of its mine having foreseen viability difficulties. The management and workers engaged each other with a view to disposing of company houses by way of sale to sitting tenants. Some Housing Committee was established to oversee and conclude that process. Several meetings were held which culminated in management and employees signing a Memorandum of Agreement to the effect that the applicant “agreed to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees who are sitting tenants effective on 1 December 2003. Find the agreed prices attached.”

The schedules attached reflect names of the beneficiaries, house numbers, new valuations, and monthly repayments.

Then comes the queerness of the entire arrangement.

On 12 December 2003, the applicant concluded what is termed a Memorandum of Agreement of Lease with the various sitting tenants who were to purchase the houses. In the so-called lease agreement are clauses, inter alia, providing for the amount of rent payable per month which was to “escalate periodically at the rate and on the basis described in Annexure 'A' hereto.”

The Annexure 'A' provides;

“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 revalued outstanding balance will then be divided by the remaining period to get the monthly payment.”

The “lease” was to endure for five years commencing on 1 January 2004 and had an option to purchase the property after the five year period. The rentals paid by the lessee in terms of the “lease” were to be taken into account and be deducted from the amount due in respect of the purchase price.

The respondent's various payslips over the years reflect two pertinent items, viz a deduction itemised as “Rent to Buy” and another itemised “Bal. Rent to Buy.”

It is essentially the foregoing facts upon which the contention revolves.

The applicant contends that no Sale Agreement was concluded but a lease, while the respondent contends that a Sale Agreement was in fact concluded and that the purported lease was simply a “finance lease whose lifespan would go as far as the last instalment towards the purchase of the house by myself” and was never meant to be an operating lease.

While the applicant relied on the case of Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 which held that the arrangement between the parties was not a sale but a lease, the respondent argued that facts of the present case are different from those in Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09. He further contended that in a trial cause in:

1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Godfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 the High Court (MAKARAU JP…,.) distinguished Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 on the facts similar to ones in casu and held that there was a sale.

Therein, the learned judge, at p10 of the cyclostyled judgment, held as follows:

“The plaintiffs allege that it was the first agreement that was entered into with the requisite intention of creating a binding agreement between the parties. The subsequent lease agreements were not as they were meant and understood by both parties to be mere vehicles of facilitating the payment of the purchase prices for the housing units. That, in my view, should end the enquiry.”

And at pp13 and 14 she held as follows:

“In concluding as I do, I am aware of the Supreme Court judgment in Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 in which it was held that the agreement of 1 December 2003, between the defendant before me and a similarly placed employee to the plaintiffs before me, was not an agreement of sale. It was held in that case, that, in the agreement, the defendant agreed to offer for sale the housing units to its employees. While the Supreme Court in the Kovi matter found no evidence that the employee in that matter took up the offer; in casu, I believe I have such evidence. The clear evidence led before me shows that each of the three employees took up the offer made to them and exercised the option by commencing to make periodic payments to the defendant. More importantly, in my view, such payments were accepted by the defendant's management of the day as a reduction in the purchase price of the housing units involved.”

Since the facts and arguments in casu fall on all fours with the cases dealt with by MAKARAU JP…, cited above and also that the applicant's counsel in the instant case represented the same client in the above cited matters, he ought to have realised the futility of launching the application for summary judgment as he must have known that the respondent has a triable or arguable defence.

Over and above that, the parties in that case are still awaiting the outcome of the appeal noted at the Supreme Court.

The applicant was, accordingly, trying a long shot in the dark.

The foregoing were the reasons why the application for summary judgment was refused and the respondent given unconditional leave to defend the action.

HH88-12 : BLUMO TRADING (PRIVATE) LIMITED t/a COLCOM COMMODITIES vs MORGAN MUDUVURI
Ruled By: MATHONSI J

The respondent was served with the applicant's heads of argument on 23 May 2011. In terms of Rule 238(2a) of the High Court Rules, as the respondent is represented by a legal practitioner, the said legal practitioner was required to file heads of argument not more than ten days after receiving the applicant's heads of argument.

That provision is peremptory, and, in terms of subrule (2b) of Rule 238 a respondent who fails to file heads of argument within the prescribed period of time is automatically barred and the court is entitled to deal with the matter on the merits or direct that it be set down unopposed.

Counsel for the respondent conceded that the respondent's heads were not filed on time.

In fact, they were only filed on 16 January 2012 - well out of time. No application for condonation was made, and, as such, the respondent has no right of audience.

I intend, therefore, to deal with the matter on the merits.

I have studiously gone through the papers filed of record and I am of the view that a good case has been made for an order of summary judgment.

In order to defeat an application for summary judgement, the respondent is required to satisfy the court that he has a good prima facie defence. He must allege facts, that, if proved at the trial, would entitle him to succeed at the trial.

I am of the view that the respondent has failed to do so.

What he has done is to dispute the purchase price of the maize that he delivered to the applicant when in fact the price was agreed upon between the parties and he appended his signature on the various documents signifying delivery.

It remains for me to deal with the penalty stipulation of 10% monthly interest.

I do not agree with counsel for the applicant that it does not violate the provisions of the Contractual Penalties Act [Chapter 8:04].

To me, 10% interest a month is excessive.

In terms of section 4(2) as read with section 4(4) of the Contractual Penalties Act, if it appears to a court that the penalty is out of proportion to any prejudice suffered by the creditor as a result of the breach, the court may reduce the penalty and grant what is fair and just in the circumstances.

Without going into the arithmetics of the debt, I am of the view, that, the computation made by the applicant to justify the penalty is not convincing as it exaggerates the prejudice suffered. It is best practice, where interest is to be reckoned on a monthly basis, to place it at about 3 to 5%.

I am of the view that, in casu, it should be pegged at 5% per month.

In the result, I make the following order, that:

1. The application for summary judgment is hereby granted.

2. The respondent shall pay the applicant the sum of US$27,224=19.

3. The respondent shall pay the applicant interest on the aforesaid amount at the rate of 5% per annum from 2 December 2010 until date of full and final payment.

4. The respondent shall pay the applicant a penalty amount on both the capital and the interest amount aforesaid on a compounded basis at the rate of 5% per month from 12 January 2011 until date of full and final payment.

5. The respondent shall pay costs of suit on a legal practitioner and client scale.

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J

The applicant seeks summary judgment for the eviction of the respondent and all those claiming occupation through him from residential premises known as No.16 West Estate, Lafarge Cement in Greendale, Harare.

When the respondent received the eviction summons in HC9669/17 in which the applicant sought to vindicate against the respondent, it being the owner of the premises which the respondent occupies without its consent and authority, the respondent entered appearance to defend and filed a plea.

In that plea, the defendant admitted losing his employment with the applicant but averred that he was contesting his dismissal and would only vacate the premises if he loses his labour case. He also disputed liability to pay hold over damages on the ground that he never agreed to any rental for the premises.

It is against that background that the applicant has sought summary judgment as it is of the firm view that the respondent possesses no bona fide defence to the eviction claim and that appearance has been entered for purposes of delay.

This is because the respondent secured the premises by virtue of his employment by the applicant as a Quarry Superintendent, which employment was terminated on 12 November 2013 following an act of misconduct the respondent admitted having committed. For that reason, the respondent cannot continue in occupation of the company house not being an employee of the company.

All the material facts are really common cause.

The parties indeed enjoyed an employer-employee relationship until the respondent violated the employer's Code of Conduct resulting in him being charged with misconduct. One of the acts of misconduct was that he had left his work place without permission. In fact, the respondent had taken a Nissan Hardbody motor vehicle belonging to the employer and driven it to a farm in Ruwa, about 25km from his work location, on a personal errand, and was busted by his boss who later preferred charges against him. When that happened the respondent had, in vain, apologized profusely. He was still dismissed from employment.

The respondent appealed to the Labour Court against the dismissal but had his appeal thrown out by that court by judgment delivered on 24 October 2014, the court concluding that there was no merit in the appeal.

The respondent then sought leave to appeal against the judgment of the Labour Court which application for leave was not made timeously and he had to seek condonation. The application for leave was not granted he having defaulted resulting in its dismissal.

What the respondent is doing now is to seek a rescission of the default judgment dismissing his application for leave to appeal. So it is not like there is any pending appeal but the respondent is relying on that to contest eviction.

The issue for determination therefore is whether a former employee who was allocated company accommodation by the employer by virtue of his or her employment, but has lost that employment, is entitled to resist eviction by way of an actio rei vindicatio merely because he or she harbours an intention to contest the dismissal - a dismissal that has been upheld by the Labour Court.

The point to note is that there exists no employment relationship between the parties at the present moment - it having been terminated.

It is also common cause that the applicant is the exclusive owner of the premises and had only given the premises to the respondent as part of his employment benefits.

Can the respondent continue enjoying the benefit of employment under those circumstances?

The principles of the actio rei vindicatio are settled in our law.

The owner of property has a vindicatory right against the whole world. It is a remedy available to the owner whose property is in the possession of another without his or her consent. Roman-Dutch law has always protected the right of an owner of property to vindicate his or her property as a matter of policy - even against an innocent occupier or innocent purchaser, where the property would have been sold. The occupier would only have the defence of estoppel: see Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S)…,; Chetty v Naidoo 1974 (3) SA 13 (A)…,; Oakland F Nominees (Pty) Ltd v Gelria Mining and Investment Co Ltd 1976 (1) SA 441 (A)…,.

Indeed, the principle of the actio rei vindicatio is that an owner cannot be deprived of his or her property against his or her will. All the owner is required to prove is that he or she is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right to retention: see Jolly v Shannon and Anor 1998 (1) ZLR 78 (H)…,; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H); Zavazava & Anor v Tendere 2015 (2) ZLR 394 (H)…,.

Counsel for the respondent submitted, that, in an application for summary judgement the respondent is not required to prove a defence. All that the respondent is enjoined to do is to show that he has a bona fide defence, which, if proved at the trial, would entitle him to succeed. She submitted that the respondent has managed to do so because he had shown that there is a matter pending in which he is challenging his dismissal.

I agree with counsel for the applicant, that, there is no appeal which is pending at the moment, and that even if an appeal had been pending in the Labour Court such an appeal would not suspend the decision appealed against by virtue of the provisions of section 92E(2) of the Labour Act.

That may indeed be academic because the appeal to the Labour Court was dismissed. The respondent cannot return to the Labour Court which upheld his dismissal.

As already stated, what his pending in that court is an application for rescission of judgment, not even the judgment dismissing the appeal because that cannot be rescinded it having been made in the presence of the respondent, but the judgment dismissing his application for leave to appeal.

There is therefore no appeal pending and no leave to appeal has been granted. The respondent is holding onto nothing at all as would entitle him to resist eviction.

I have stated before, that, an employee who has lost employment has no right to hold onto the property of the former employer allocated to him or her by virtue of employment or as a condition of employment merely on the grounds that he or she is challenging the termination of the employment contract: see Montclaire Hotel & Casino v Mukuhwa HH501-15.

The point is also made in William Bain & Co Holdings (Pvt) Ltd v Nyamukunda HH309-13, that, a former employee cannot lawfully confiscate or hold on to a former employer's property after termination of the employment contract because the right to hold on to the property is extinguished by the termination.

Put in another way, a former employee does not acquire a right of retention as can be used to resist a rei vindicatio on the basis of a challenge of a completed dismissal from employment and a forlorn hope that such dismissal may be reversed at a future uncertain date.

This is particularly so in a case such as the present, where the former employee is not even in court properly challenging the dismissal. He is only seeking a rescission of a judgment which denied him leave to appeal.

No right arises out of a dismissed appeal especially in a situation where even the leave to appeal against the judgment of the Labour Court has also failed.

There is no determination of the contract of employment in this matter which distinguishes it from the case of Zimtrade v Makaya 2005 (1) ZLR 427 (H) where this court held that the employer could not seek to repossess its assets from an employee using the rei vindicatio pending the determination of the contract of employment.

In this case, the contract has already been determined by both the employer's disciplinary committee and the Labour Court.

It seems to me that the pronouncement of MAKARAU JP…, in Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 11 (H)…, is apposite. She said:

“…, where the status of the former employee is without dispute, the rei vindicatio can lie at the instance of the employer in appropriate cases and the matter thereby falls outside the purview of the Labour Court as it is not a matter that can be heard or determined in terms of the Labour Act or any other related enactment.

It is my view, that, the rei vindicatio is not a cause of action whose remedy can be granted in terms of the Act as a stand-alone remedy in the absence of a dispute that is specifically provided for under the Act.”

The learned Judge was making the point, that, the High Court has jurisdiction to determine the claim for the recovery of the employer's property in the hands of a former employee even though the dispute was of a labour nature.

She also made the crucial point, that, where the contract of employment has been determined, the rei vindicatio can be used by the employer to recover the property.

It is that right which the employer seeks to enforce, by summary judgment, in this case.

Summary judgement is an extraordinary, and, indeed, drastic remedy in the sense that it negates the right of a litigant who has expressed a willingness to access the court and defend an action to do so.

It is however a deliberate remedy designed to deny a mala fide defendant the benefit of the audi alteram partem rule simply because the plaintiff's claim would be unassailable.

Therefore, where the proposed defences of the defendant to the claim are clearly un-arguable, both in fact and in law, the drastic remedy of summary judgment is availed to the plaintiff: see Chrisma v Stutchbury and Anor 1973 (1) RLR 277 (SR)…,.

It is settled, that, in order to defeat a summary judgment application, the respondent must disclose facts upon which his or her defence is based with sufficient clarity and completeness so as to persuade the court that, if proved at the trial, will constitute a defence to the claim.

It is also settled that not every defence raised by a defendant will succeed in defeating a plaintiff's claim for summary judgement. It must be a bona fide defence stated with sufficient clarity and completeness to allow the court to determine whether the opposing affidavit discloses a bona fide defence: see Kingston Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.

In my view, what the respondent has raised, that he is still fighting his dismissal at the Labour Court, even though that court dismissed his appeal and denied him the right to appeal to the Supreme Court against that judgment, is not a bona fide defence at all.

If raised at the trial, it will not succeed because the applicant is the undisputed owner of the property which has a vindicatory right in respect of that property.

A dismissed employee has no right of retention in respect of the property where the employment contract has been terminated and there is no case pending in that regard.

The applicant is entitled to summary judgment.

Counsel for the applicant abandoned the claim for hold over damages content to pursue the eviction only.

In the result, it is ordered that:

1. Summary judgment be and is hereby entered in favour of the plaintiff for the eviction of the respondent and all those claiming occupation through him from 16 West Estate, Lafarge Cement, Greendale Harare.

2. Costs of suit.

HH586-14 : WELLINGTON TAKAWIRA vs CZI INCORPORATED (PVT) LTD
Ruled By: UCHENA J

The applicant was the respondent's employee. He resigned from employment by letter dated 1 October 2013. The respondent accepted his resignation by letter dated 6 January 2014. Through the same letter, the respondent acknowledged that it owed the applicant US$32,542=07 for salaries, pension refunds, cash in lieu of leave, and ...

1. 1st instalment by 7th February 2014 - $10,000-00

2. 2nd instalment by 28 February 2014 - $ 3,757-00

3. 3rd instalment by 31st March 2014 - $ 3,757-00

4. 4th instalment by 30th April 2014 - $ 3,757-00

5. 5th instalment by 31st May 2014 - $ 3,757-00

6. 6th instalment by 30th June 2014 - $ 3,757-00

7. 7th instalment by 31st July 2014 - $ 3,757-00

In addition, the respondent asked the applicant to handover the company vehicle by the 31st December 2013 which was his last working day. The respondent did not pay the applicant as promised. The applicant did not handover the company motor vehicle as directed.

The applicant issued summons claiming the sum of US$32,542=07 from the respondent. The respondent entered appearance to defend. The applicant applied for summary judgment.

The respondent opposed the applicant's application and counter applied for an order that the applicant handover the company vehicle, an Isuzu KB registration number ABD 4174, to the respondent.

At the hearing of the applicant's application for summary judgement and the respondent's counter application, the respondent in the application for summary judgment raised a point in limine challenging the jurisdiction of this court on the basis of section 89(6) as read with section (1) of the Labour Act [Chapter 28.01] which provides as follows;

“(1) The Labour Court shall exercise the following functions —

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal, or matter referred to in subsection (1).”

The applicant submitted that this court has jurisdiction because there is no dispute the Labour Court can hear and determine as the respondent admits and acknowledged its indebtedness to the applicant.

Commending on the respondent's counter application, counsel for the applicant said the applicant is holding the respondent's motor vehicle as a lien for the acknowledged debt.

He is agreeable to this court ordering the respondent to pay the sum owed and his client being ordered to handover the motor vehicle to the respondent. It is therefore clear that both parties have no defence to the other party's claim against them.

There is therefore no dispute to be determined by the Labour Court.

The Labour Court's exclusive jurisdiction does not apply where a party has admitted its indebtedness arising from a labour relationship which amicably ended with the rights of both parties clearly spelt out and admitted by the other.

Section 89(6) of the Labour Act applies where the Labour Court has “to hear and determine any application, appeal, or matter referred to in subsection 1.”

In this case, both parties admit their liability to the other leaving no dispute to be determined by the Labour Court.

Where a party acknowledges his indebtedness to the other, this court has jurisdiction to determine whether or not to grant summary judgment.

In the case of Madinda Ndhlovu v Highlanders Football Club HB95-11 CHEDA J, dealing with a similar situation, said;

“It is my respectful view, that, while it was the intention of the legislature to oust the jurisdiction of the courts from adjudicating on matters involving labour disputes, an acknowledgment of debt, even if it arises from a contract of labour, is not what the legislature intended to mean. An acknowledgment of debt is nothing but a liquid document which is covered by the rules of this court, for which an application for summary judgment can be applied for.”

The respondent's point in limine is therefore dismissed.

The applicant's application for summary judgement should be granted as the amount claimed is acknowledged in the letter in which the respondent accepted the applicant's resignation.

The debt is further admitted in the opposing affidavit of Nozipho Guzha…, where, in paragraphs 12, 13, and 14, she clearly admits that the respondent owes the applicant the sum of US$32,542=07, but has delayed the promised payments due to financial problems the respondent is facing.

The counter-application should also be granted because the applicant admits that the motor vehicle belongs to the respondent, but was holding it as a lien.

On the granting of the court order, the need for a lien falls away as the applicant can execute the court order to be granted.

Counsel for the applicant submitted that his client is not opposed to the order sought in the respondent's counter claim being granted.

In the result, the applicant's application for summary judgment and the respondent's counter application for the handing over of its motor vehicle, are granted in terms of their respective draft orders as amended.

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA
Ruled By: TAKUVA J

This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules, 1971.

The background facts are as follows:

The applicant, plaintiff at the time, issued summons under HC880/09 against one Richard Dunduza (1st defendant) now deceased and one Tafara Chikati (2nd defendant), seeking payment from the defendants the sum of ZAR351,784 (three hundred and fifty one thousand seven hundred and eighty four South African Rands). The applicant subsequently obtained the following order in his favour:

“1. The first defendant shall pay the sum of ZAR351,784 (Three hundred and fifty one thousand seven hundred and eighty four South African Rands) to the plaintiff.

2. The first defendant shall pay interest on the above sum at the prescribed rate from 1st March 2009 to date of full and final payment.

3. The first defendant shall pay costs of suit on an attorney/client scale.”

This order was granted on 29 April 2010, and, shortly thereafter, on 7 May 2010, the applicant obtained a writ of execution against the first defendant, one Richard Dunduza's immovable property, being Stand Number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned above.

The Deputy Sheriff has mandated Bulawayo Real Estate to sell the property by private treaty. The property was advertised and interested parties were referred to view the property.

The respondent, who is the spouse of Richard Dunduza, and is in occupation of the house, has been frustrating efforts by prospective buyers to view the property. Prospective buyers were insulted and threatened with violence by the respondent and those occupying the property through her.

The applicant, having failed to obtain satisfaction from the order obtained under HC880/09 issued summons for eviction of the respondent under HC1841/13. The respondent entered appearance to defend and the applicant then filed this application.

As pointed out in my introductory remarks, the basis of the application is Order 10 Rule 64 which states:

“64. Application for summary judgment

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.”

The applicant in casu had contended that the respondent has no bona fide defence in case number HC1841/13 in that the order under HC880/09 is a lawful order granted on the merits of the matter.

The issue, therefore, is whether or not the respondent has a bona fide defence: see Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H); Jena v Nechipote 1986 (1) ZLR 29 (S); and Mapuranyanga v Sheriff of the High Court & Ors 2003 (1) ZLR 235 (S).

A reading of the respondent's notice of opposition reveals the following defences:

1. That her husband was very ill at the time;

2. That there is no proof that her late husband, Richard Dunduza, stole the applicant's money because the applicant issued summons before the criminal matter had been finalised in court;

3. That the property in question is part of the deceased estate and therefore any claims should be made via the Master of the High Court.

4. That she is a widow who is struggling to raise her four (4) children.

In my view, none of the proposed defences has any merit:

(i) The first is devoid of merit because there is no indication on the papers that Richard Dunduza was not properly served in terms of the Rules of this court.

(ii) As regards the second, it is trite that the institution of criminal proceedings does not preclude a party from instituting a civil action against the same party in the criminal proceedings: see section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides that:

“Neither a conviction no acquittal following any prosecution shall be a bar to a civil action for damages at the instance of any person who may have suffered any injury from the commission of any offence.”

(iii) The third proposed line of defence lacks bona fides in that the property was attached before the respondent's husband died; therefore, it is clearly excluded from the husband's estate.

(iv) Finally, the respondent's hardship may not be used as a defence to a lawful execution of an order of court. Perhaps the respondent could resort to the provisions of Rule 348A of this court's Rules to try and stop the sale of a dwelling.

For these reasons, I find that the respondent has no bona fide defence to the applicant's claim for eviction. She has not raised any triable issues.

Accordingly, it is ordered that:

1. Summary judgment be and is hereby granted to the applicant in case number HC1841/13 in respect of the eviction of the respondent and all those claiming occupation through her from the property known as Number 9469 Nkulumane, Bulawayo.

2. There shall be no order as to costs.

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules 1971.

The applicant, a local authority is obliged by the law to provide certain services to residents of the City of Bulawayo which services include the provision of road maintenance, refuse collection, and water and sewer services.

The respondent is a resident of the City of Bulawayo and is the registered owner of a certain immovable property otherwise known as Number 58A Robert Mugabe Way, Bulawayo.

In fulfillment of its legal obligations, the applicant provided the services stated above to the respondent and raised service charges amounting to US$20,126=40.

The respondent failed and/or refused to pay the above mentioned service charges and the applicant issued a summons on 10 December 2013 claiming:

(a) Payment of $20,126=40 being the total service charge due and payable;

(b) Interest a tempore morae, at the prescribed rate, from the 30th day of January 2011 to the date of payment;

(c) Costs of suit.

The summons was served on the respondent on 13 December 2013 and it entered appearance to defend on 17 December 2013. On 10 January 2014, the respondent's legal practitioners requested for further particulars as follows:

“To enable the defendant to plead, plaintiff should supply the following particulars;

1. It is alleged in para 3 of plaintiff's declaration that it provided services to defendant, and, as such, is entitled to levy; rates; road levy; water, and other services; of the $20,126=40, how much is for:

(i) Rates;

(ii) Road levy;

(iii) Water; and

(iv) Other services.

2. The said sum is $20,126=40 is for which period (sic), a full itemized breakdown is requested.

3. The claimed sum is said to have a component of rates:

(a) How much is the monthly rates in respective of the property;

(b) Since the rates are a percentage of the value of the property, how much is the property valued at.”

The applicant supplied its further particulars on 18 March 2014 as follows:

“Plaintiff replies to defendant's request for further particulars as follows:

1. Ad paragraph 1 thereof

(i) The charges vary from month to month but charges are calculated as shown from Annexure “A” hereto which represent the charges for 30th November 2013 totalling $770=36 and for 31st December 2013 in the sum of $699=27.

(ii) For the period 30th January 2011 to the 30th November 2013 amounting to $20 215=50. See Annexure “B” hereto”.

2. Ad paragraph 2 thereof

See Annexure “B” hereto.

3. Ad paragraph 3 thereof

(a) $500 see Annexure “A” hereto.

(b) Land valued at $393,500 and improvements valued at $65,000. See Annexure 'A' hereto.”

The respondent, who was supposed to have filed his plea on or before 3 April 2014 in terms of the Rules of this Court, failed to do so.

The applicant applied for summary judgement on 17 April 2014 on the ground that the respondent has no bona fide defence and that the appearance to defend, and the request for further particulars, were nothing more than ways of buying time.

The application was vigorously opposed on the following grounds:

1. Wilful Disregard of the Law

The submission here is that the present application ought to be dismissed for want of compliance with the peremptory provisions of section 279 and 281 of the Urban Councils Act (hereinafter called the Act). Section 281 reads:

“Legal proceedings for recovery of rates

No legal proceedings for the recovery of rates shall be instituted against any person referred to –

(a) In subsection 2 of section two hundred and seventy-nine unless the council has complied with that subsection and the owner has failed, within fourteen days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein; or

(b) In subsection (3) of section two hundred and seventy nine unless he has failed, within thirty days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein, subject to the maximum amount provided for in that subsection.”

Section 279 of the Urban Councils Act states:

“Liability to pay rates

1. The person who is the owner of any property on the date on which any rate fixed and levied by the council becomes due and payable shall be primarily liable for that rate.

2. If, on the date on which a rate becomes due and payable, the owner primarily liable has failed to pay that rate, a demand in writing may be served on him requiring him to pay the amount stated therein within fourteen days of the service of the demand.

3. If the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2) then any person who, at any time during the period in respect of which such rate was fixed and levied –

(a) Is the occupier of the property concerned, shall, if a demand in writing is served on him by the council, be liable for such rate together with any other unpaid rates in respect of such property, not exceeding the amount of any rent in respect of such property due by him but not yet paid at the time of the demand and shall thereafter continue to pay such rents to the council until the amount of the unpaid rates has been paid off;

(b) As agent or otherwise, receives any rent in respect of such property, shall, if a demand in writing is served on him by the council, be liable for such rate, together with any other unpaid rates in respect of that property, not exceeding the amount of any such rent paid to him subsequent to that demand, subject to the deduction by the agent of commission due to him for the collection of that rent.

(c) The persons referred to in paragraphs (a) and (b) of subsection (3) shall be liable for the rates to the amount specified therein jointly and severally with each and with the owner primarily liable.

4….,.”

The crisp point made by the respondent is that, in terms of these provisions, it was incumbent upon the applicant to serve the respondent with a demand, in writing, requiring it to settle its dues within (14) fourteen days from the date of such demand.

It was further contended that these provisions are peremptory in that the applicant cannot institute legal proceedings before serving the owner with the demand giving him fourteen (14) days to comply.

In casu, since such a demand has not been issued by the applicant, it has failed to comply with the law and the proceedings are a nullity, so the argument goes.

The respondent relied on:

(a) MAXWELL: Interpretation of Statutes (7th ed)…,.

(b) Nkisimane & Others v Santam Insurance Co. Ltd 1978 (2) SA 430 (A)…,.

2. Disregard of a Ministerial Directive

The respondent's contention here is that the ministerial directive does not give the applicant an option to institute legal proceedings against the respondent for rates and other charges that fall within the period covered by the directive.

The respondent submitted, that, while it is required to pay its dues as a corporate, the applicant ought to have engaged the respondent and “endeavored to find mutually convenient solutions.”

This is mainly so because the directive states; “where they have challenges, viable arrangements shall be worked out with the relevant local authorities.”

Put differently, the respondent's argument is that before resorting to litigation, the applicant should have initiated some form of discussion to resolve the dispute.

3. Fatal Non-Joinder

The respondent argued, that, a proper interpretation of sections 279 and 281 of the Urban Councils Act is that it is obligatory on the part of the applicant to sue any occupiers and agents, if any, together with the owner of the premises.

In casu, it was submitted, that, the applicant ought therefore to have joined Dawn Properties, the respondent's property managers or agents, as second respondent in this suit.

Before I deal with these grounds, let me deal with a side issue, namely, the application for leave to file a supplementary affidavit by the applicant.

This application was made and argued by the parties on the day of the hearing of this matter.

The applicant justified its application on the fact that the respondent raised, in its notice of opposition, a whole range of points in limine not anticipated when it constructed the application.

The applicant relied on Rule 67(c)(1) of the High Court Rules 1971. Order 10 Rule 67(c)(1) states:

“67 Limitations as to evidence at hearing of application

No evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice, nor may either party cross-examine any person who gives evidence viva voce or by affidavit;

Provided that the court may do one or more of the following –

(a)…,.

(b)…,.

(c) Permit the plaintiff to supplement his affidavit with a further affidavit dealing with either or both of the following –

(i) Any matter raised by the defendant which the plaintiff could not reasonably be expected to have dealt with in his first affidavit; or

(ii) The question whether, at the time the application was instituted, the plaintiff was or should have been aware of the defence.”

It is common cause that after being served with further particulars that it had requested, the respondent took no further action. It did not file a plea, which naturally would have dealt with the defence extensively.

From 19 March 2014 to 17 April 2014, the respondent simply sat back and did nothing.

It did not contact the applicant's legal practitioner to set in motion some sort of negotiations. It is only after the applicant had applied for summary judgment that the respondent woke up from its slumber and filed a notice of opposition raising numerous technical points referred to above.

In my view, the matters raised by the respondent, in its notice of opposition, are matters that the applicant could not reasonably be expected to have dealt with in its first affidavit.

Why would the applicant be expected to deal with a defence wherein a registered owner of immovable property within its jurisdiction, who has been receiving and paying for services rendered in the past, suddenly claims not to be liable for the payment of such service?

It is reasonable for the applicant to expect a defence to the effect that the amount has been paid fully or partially.

In Kingstons Ltd v D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) it was held 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 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 proviso to Rule 67 of the High Court Rules 1971 is therefore to be restrictively interpreted.”

The restrictive interpretation is meant to prevent a plaintiff in summary proceedings to dispense with the provisions of the main Rule itself which bars him from adducing evidence except through his original affidavit.

The real purpose of the proviso is not to enable a plaintiff to proffer a reply to the respondent's affidavit, otherwise summary judgement proceedings would degenerate into a court application.

However, in those limited circumstances listed in Rule 67(c)(i)(ii), the use of an answering or supplementary affidavit is permissible.

For these reasons, I am of the view that, in casu, the use by the applicant of the answering affidavit is permissible.

I shall now, at this stage, decide whether the applicant has made out a case for summary judgment.

The principles are well settled in our jurisdiction. In Jena v Nechipote 1986 (1) ZLR 29 (S) GUBBAY JA…, pointed out that in order to defeat an application for summary judgement, all the defendant has to establish “is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a reasonable possibility that an injustice may be done if summary judgment is granted.”

See also Standard Chartered Bank Zimbabwe Ltd v Matiza 1994 (1) ZLR 186 (H).

In TIMNDA Truck Parts (Pvt) Ltd v Autolite Distributors (Pvt) Ltd 1996 (1) ZLR 244 (H) CHATIKOBO J…, commented thus;

“In an application for summary judgment, the applicant must do no more than simply assert that he has a good claim, that he believes that the defendant has no bona fide defence, and that the defendant has entered an appearance to defence for the purpose of delay. The applicant is obliged, by Rule 67 of the High Court Rules, to adduce evidence in its substantiation of its claim to summary judgment. That evidence must establish the facts upon which reliance is placed for the applicant's assertion that the applicant's claim is unimpeachable. The need to adduce such evidence is even stronger when the original summons lacks details of the claim against the defendant.”

Finally, in Van Hoogstraten v James & Ors 2010 (1) ZLR 608 (H) MAKONI J stated that:

“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 a trial. It has far reaching consequences, as it effectively denies the defendant the benefits of the fundamental principle of the audi alteram partem rule. It can only be granted to the plaintiff when all proposed defences to the claim are clearly unarguable - both in fact and in law. The defendant does not have to establish his defence on the probabilities. All he needs to do is to allege facts which disclose a defence. These facts, if pleaded and accepted at the trial, must be sufficient to establish a defence.”

See also Chiadzwa v Paulkner 1991 (2) ZLR 33 (S) and Nedlaw Investments & Trust Corp Ltd v Zimbabwe Development Bank SC05-00.

What the authorities state quite simply is that relief by way of summary judgment is of an unusual kind that is meant to grant a plaintiff with an apparent clear right, a speedy means of relief against a delaying or recalcitrant debtor.

The court therefore has a discretion whether or not it will enter summary judgment.

That is a stringent power whose exercise must be watched, strictly, in order to see that the plaintiff has brought himself to within the scope of the provisions of the Rule. However, this does not mean that every unsubstantial technicality raised by the defendant must be given effect. Rather, the proper approach is that care must be taken to see that the plaintiff has, in accordance with the terms of the Rule, made out a cause of action to which the defendant can have no possible defence.

In the present case, the respondent's first proposed line of defence is that the applicant's messenger, one Kevin Adams, lied under oath that a letter required to be served upon the respondent in terms of section 279 and 281 of the Urban Councils Act was served on the respondent when in fact no such letter was served.

It was further submitted that the respondent has since filed a police report against the messenger for perjury.

The respondent believed that the letter was prepared merely as an afterthought after the summons had already been issued and after the applicant had realized that the failure to comply with the Urban Councils Act was fatal to its case. This fact, according to the respondent, is supported by the fact that the letter is not signed and there is no acknowledgment of receipt by the respondent.

The applicant's submission was that Kevin Adams did not lie at all and therefore the dirty hands principle does not apply.

As regards the argument that Trishul does not exist, the applicant submitted that this does not make sense because the Deputy Sheriff served a summons on 13 December 2013 at the same place on a manager called Trishul. After the summons was served on Trishul, the respondent entered an appearance to defend. This means the respondent saw the summons.

In my view, it is not a mere coincidence that Kevin Adams and the Deputy Sheriff would visit the same place, on different dates, and claim to have seen the same person if that person did not exist.

Clearly, the Deputy Sheriff did not lie because the respondent acted on the document that was served on 13 December 2013. Earlier, on 14 November 2013, Kevin Adams had delivered a letter to a Mr Trishul at the same premises.

For these reasons, l find that the dirty hands principle cannot be sustained as there is no evidence that Kevin Adams lied.

As regards the second line of defence, the applicant submitted that it wrote and served Annexure C on the respondent. It was further contended that Annexure C complies with the provisions of section 279 of the Urban Councils Act in that it was written at the instructions of the applicant and it is a letter of demand.

Annexure C is a letter of demand dated 13th November 2013 and addressed to the respondent's manager. It states:

“Re: Bulawayo City Council vs Trishul Properties A/C31408503

We act on behalf of the Bulawayo City Council which has instructed us that you owe it rates and water charges amounting to $20 126=40, which sum, despite demand, you have failed and/or refused to pay.

Our client has instructed us to demand from you, as we hereby do, payment of the whole amount outstanding together with interest at the rate of 5% and legal costs.

You are required to settle the debt by no later than the 30th November 2013 or to agree with us acceptable terms of payment by that date, failing which our instructions are that we should issue summons against you without further notice.”…,.

The argument that the applicant had no authority to delegate its power to a legal practitioner does not make sense at all.

Section 281(a) of the Urban Councils Act does not prohibit the applicant from appointing an agent to act on its behalf.

The letter, that is Annexure C, is as good as if it had been written by the applicant itself.

Consequently, I find that Annexure C is a “demand” as contemplated by section 281 of the Urban Councils Act. Therefore, that defence is devoid of merit.

The third proposed defence is bogus and bad in law. It demonstrates, quite clearly, the applicant's lack of bona fides. I say so for the following reasons;

(a) The directive is meant to cushion individual rate payers from the severe effects of economic challenges experienced during the period in question.

(b) Corporates (like the respondent) are expressly excluded in paragraph 3 which states:

“…,. Please note that corporates are expected to pay their obligations in full, and, where they have challenges, viable arrangements shall be worked out with the relevant authorities.”…,.

(b) The directive does not bar Councils from suing corporates where no viable arrangements have been worked out.

(c) In any case, Annexure C invited the respondent to enter into payment arrangements but the respondent ignored it.

(d) The tenor of the above quoted paragraph of the Directive shows that the onus is on corporates facing challenges to initiate efforts to arrange viable payment plans. It is naïve and absurd to suggest otherwise for it would be a sad day in our commercial law if a debtor is permitted to say to a creditor; I know I owe you so much, but, before I pay, you must get down to your knees and ask when and how I shall pay.

For these reasons, this third line of defence is without merit.

The fourth and last line of defence relates to the alleged fatal non-joinder. Once more, I find the respondent's argument difficult to follow.

Section 279(1) of the Urban Councils Act is very clear in that it states that the person who is the owner “shall be primarily liable for that rate.”

In terms of subsection (2) of section 279 of the Urban Councils Act, the applicant is allowed to institute legal proceedings against the landlord after 14 days notice to pay while in respect of tenants and agents a notice of 30 days has to be given.

Quite clearly, if it was intended that they be sued jointly, there would have been no need for the difference in the notice period.

In any case, subsection (3) of section 279 of the Urban Councils Act makes it clear that occupiers and agents only become liable “if the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2).”

These provisions, if considered contextually do not mean that failure to sue the owner jointly with occupiers and/or agents is fatal to the proceedings.

In any event, it would be unreasonable to expect the applicant to know that there were tenants occupying the building without being notified by the respondent of the presence of such tenants and what their particulars were. Equally so, how would the applicant be expected to know that there was an agent who was receiving any rent in respect of the property, if the respondent had not informed the applicant of that fact?

I find, for these reasons, that there was no mis-joinder in this case.

The respondent has not said anything on the merits apart from a vague and bold assertion that the applicant has not taken into account amounts paid by the respondent.

The opposing papers do not reveal any defence, let alone a bona fide defence, to the claim. The respondent has not raised any arguable or triable issues as I have demonstrated. Therefore, the applicant should not be subjected to the delay and expense of going to trial.

As regards costs, despite knowledge that its defences were bogus and bad at law, the respondent proceeded to mount a spirited opposition to the application, forcing the applicant to incur unnecessary expenses. Such conduct should be discouraged, and, the only way to do so, is by an award of costs at a higher scale.

Further, the respondent's conduct is an abomination, in that, by refusing to pay its own fair share of expenses for service provision, it has forced the applicant to either supplement its own funds or let the rest of its rate payers suffer. Such selfish conduct is unacceptable.

Accordingly, I make the following order:

1. Summary judgment be and is hereby granted to the applicant in the sum of $20,126=40 being the arrear service charges due and payable by the respondent.

2. The respondent pays interest a tempore morae at the rate of 5% per annum reckoned from the 30th day of January 2011 to the date of payment.

3. The respondent shall pay costs of suit on client and attorney scale.

SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO
Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court Bulawayo, dated 23 July 2020, which dismissed the appellant's appeal against the decision of the Magistrate's Court granting the respondent summary judgment against him.BACKGROUND FACTSThe appellant is the owner of a residential property known as Number 18 Pingstone ...

BACKGROUND FACTS

The appellant is the owner of a residential property known as Number 18 Pingstone Road, Kumalo within the City of Bulawayo. His property's account number is 34452705. He, as is the norm, was billed for water and rates between August 2013 and November 2018. He did not pay his bills leading to an accumulated debt of US$4,601=50.

He says he did not pay the bills because:

1. He wanted to be billed separately for water and rates, citing section 281 of the Urban Councils Act [Chapter 29:15].

2. That he should not be billed in US dollars when that currency was not available; and

3. That the respondent had not disclosed the particulars of the Urban Councils Act under which the bill was based.

In terms of section 281(1) of the Urban Councils Act, the respondent sent a final letter of demand to the appellant on 16 March 2018. The appellant did not pay. As a result, on 1 November 2018, the respondent issued summons against the appellant in the Magistrates Court. He still did not pay, for the reasons already explained above.

On 13 November 2018, he entered an appearance to defend. Thereafter, on 16 May 2019, the respondent applied for summary judgement.

After taking into consideration the changes which had taken place due to the coming into force of the Magistrate's Court Rules 2019, the Magistrates Court granted the respondent's application for summary judgment. It held, that, the appellant did not have a bona fide defence to the respondent's claim and that he had entered appearance to defend for purposes of delaying the inevitable eventual payment of the respondent's claim.

Aggrieved by the granting of summary judgement, the appellant appealed to the court a quo.

In his grounds of appeal, he raised two issues;

(i) That he had not been billed separately for rates and water; and

(ii) That the application for summary judgment had been made more than seven (7) days after entry of his appearance to defend.

The respondent opposed the appeal.

On hearing the appeal, the court a quo held, that, the application for summary judgment was made in terms of the Rules and the appellant had no bona fide defence to the respondent's claim. He dismissed the appeal with costs on the higher scale holding that the appeal marks vexatious conduct and an abuse of the process of court.

Undeterred, the appellant appealed to this Court on four grounds which raise the following issues:

1. Whether the application for summary judgment was made in terms of the Rules.

2. Whether the appellant had a defence to the respondent's claim.

SUBMISSIONS ON APPEAL

The appellant, who appeared in person, submitted that:

1. He should have been billed separately for rates and water; and

2. That the summary judgment granted by the Magistrate's Court, and was upheld by the court a quo, was irregularly granted, because, according to the 1980 Rules, summary judgment should be applied for within seven days after the defendant's entry of appearance to defend.

In response, counsel for the respondent submitted, that, the Magistrate's Court Rules 1980 were no longer applicable when summary judgment was applied for, on 16 May 2019, as they had been replaced by the Magistrates Court Rules 2019 on 1 February 2019.

On the issue of sections 279 and 281 of the Urban Councils Act, he submitted that these sections do not entitle the appellant to be billed separately for rates and water but merely provide for the procedure to be followed by the respondent when suing for unpaid rates and water bills.

THE LAW

The Magistrate's Court (Civil) Rules 1980 were repealed and substituted by the Magistrate's Court (Civil) Rules 2019. The Magistrates Court (Civil) Rules 2019 came into operation on 1 February 2019. Therefore, from 1 February 2019, the 1980 Rules were no longer in use.

The procedure to be followed was that provided in the Magistrates Court Rules 2019.

Order 15 Rule 1 and 2 of the Magistrates Court (Civil) Rules 1980, which provided for when an application for summary judgment could be made, provided as follows:

“1. When application for summary judgment may be made

1. Where a defendant has entered an appearance to defend, the plaintiff, whether in convention or reconvention, may apply to the court for summary judgment on any claim in the summons which is only —

(a) On a liquid document; or

(b) For a liquidated amount in money; or

(c) For the delivery of specified movable property; or

(d) For ejectment; or

(e) For any two or more such matters as are described in paragraph (a), (b), (c) or (d); in addition to costs.

2. An application in terms of subrule (1) shall be made on not less than seven days notice delivered not more than seven days after the date of the defendant's appearance to defend, and the plaintiff shall deliver with such notice —

(1) If the claim is illiquid, a copy of an affidavit, made by himself or by any other person who can swear positively to the facts —

(i) Verifying the cause of action and the amount claimed, if any; and

(ii) Stating, that, in his belief, there is not a bona fide defence to the action and that appearance has been entered solely for the purpose of delay;

(2) If the claim is liquid, a copy of the liquid document on which the claim is founded.”…,.

Therefore, in terms of the 1980 Magistrates Court (Civil) Rules, an application for summary judgment could be made “on not less than seven days” notice delivered not more than seven days after the date of the defendant's appearance to defend.

The 1980 Rules were repealed and replaced by Statutory Instrument 11 of 2019, S.I.11 of 2019, which, according to Order 1 Rule 2, came into operation on 1 February 2019.

Order 15 Rule 1 subrule (2) of the 2019 Rules, which provides for applications for summary judgment, reads as follows:

“(2) An application in terms of sub-rule (1) shall be made at any time before the holding of a pre-trial conference, upon seven days notice -”…,.

It therefore follows, that, after the coming into force of the 2019 Rules, summary judgment can be applied for at any time before the holding of a pretrial conference.

Sections 279 and 281 of the Urban Councils Act, which the appellant relied on for his submission that he was entitled to separate rates and water bills, provide as follows:

“279 Liability to pay rate

1. The person who is the owner of any property on the date on which any rate fixed and levied by the council becomes due and payable shall be primarily liable for that rate.

2. If, on the date on which a rate becomes due and payable, the owner primarily liable has failed to pay that rate, a demand in writing may be served on him requiring him to pay the amount stated therein within fourteen days of the service of the demand.

3. If the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2), then any person, who, at any time during the period in respect of which such rate was fixed and levied —

(a) Is the occupier of the property concerned, shall, if a demand in writing is served on him by the council, be liable for such rate together with any other unpaid rates in respect of such property, not exceeding the amount of any rent in respect of such property due by him but not yet paid at the time of the demand and shall thereafter continue to pay such rents to the council until the amount of the unpaid rates has been paid off;

(b) As agent or otherwise, receives any rent in respect of such property, shall, if a demand in writing is served on him by the council, be liable for such rate, together with any other unpaid rates in respect of that property, not exceeding the amount of any such rent paid to him subsequent to that demand, subject to the deduction by the agent of commission due to him for the collection of that rent.

(c) The persons referred to in paragraphs (a) and (b) of subsection (3) shall be liable for the rates to the amount specified therein jointly and severally with each other and with the owner primarily liable.

4. Any person referred to in subsection (3) who has paid any rate in terms of that subsection may deduct from any rent payable by him to the owner so much as was so paid by him to the council, and the production of the receipts for the rates so paid shall be a discharge for the amount so paid as payment of rent to the owner:

All property within a council area shall be rateable by the council, except property which is —
Provided that an occupier of property who has entered into an agreement whereby he has accepted liability for payment of the rates due in respect of that property shall not be entitled to make any deduction in terms of this subsection.

281 Legal proceedings for recovery of rates

No legal proceedings for the recovery of rates shall be instituted against any person referred to —

1. In subsection (2) of section two hundred and seventy-nine unless the council has complied with that subsection and the owner has failed, within fourteen days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein; or

2. In subsection (3) of section two hundred and seventy-nine, unless he has failed, within thirty days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein, subject to the maximum amount provided for in that subsection.”

These sections merely provide for who should pay Council's bills on demand being made, and the procedure to be followed when legal proceedings are instituted.

WHETHER THE APPLICATION FOR SUMMARY JUDGMENT WAS MADE IN TERMS OF THE RULES

The judgments of the Magistrate's Court, and the court a quo, clearly explained that the 2019 Magistrates Court Rules came into effect on 1 February 2019. Therefore, when the respondent applied for summary judgment, on 16 May 2019, the 2019 Rules were the applicable rules. It was then permissible to apply for summary judgement at any time before the holding of a pre-trial conference.

The appellant did not take heed. He remained fixated on the 1980 Rules - which were no longer in force.

The respondent's application for summary judgment was filed on 16 May 2019, long after the Magistrate's Court Rules 2019 had come into force, and a pre-trial conference had not been held. The use of the 2019 Rules justified the filing of the summary judgment application on 16 May 2019 as they were the Rules in force since 1 February 2019.

WHETHER THE APPELLANT HAD A DEFENCE TO THE RESPONDENT'S CLAIM

As regards the interpretation of sections 279 and 281 of the Urban Council Act, the court a quo correctly held, that, they do not provide that the appellant should be billed separately for rates and water. It further held that the bills sent to the appellant had all the information he required for the payment of his rates and water bills. The appellant therefore had no bona fide defence to the respondent's claim. The court a quo therefore correctly upheld the granting of summary judgment by the Magistrate's Court.

DISPOSITION

The appellant's appeal has no merit. The appellant has unfortunately continued with vexatious litigation. The respondent is entitled to costs at the legal practitioner and client scale.

The appeal is dismissed with costs on the legal practitioner and client scale.

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine.

WHETHER DEPONENT TO FOUNDING/SUPPORTING AFFIDAVIT HAS AUTHORITY TO DEPOSE TO IT OR ESTABLISHED KNOWLEDGE OF FACTS DEPOSED TO

An application for summary judgment is governed by Rule 64 of Order 10 of the High Court Rules 1971. The requirements for a supporting affidavit are captured in sub rule (2) which provides:

“(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 defence to the action.”

In response to the respondent's contention, that, the deponent to the supporting affidavit filed by the applicant herein had no authority, the applicant relied on the case of African Banking Corporation of Zimbabwe Limited t/a BancABC v PWC Motors (Pvt) Ltd & 3 Others HH123-13.

In that case, MATHONSI J held as follows:

“I am aware that there is authority for demanding that a company official must produce proof of authority to represent the company in the form of a company resolution. However, it occurs to me, that, that form of proof is not necessary in every case as each case must be considered on its merits: Mall (Cape) (Pvt) Ltd v Merino Ko-Opraisie BPK 1957 (2) SA 345 (C). All the court is required to do is satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not the unauthorized person.

To my mind, the attachment of a resolution has been blown out of proportion and taken to ridiculous levels.

Where the deponent of an affidavit states that he has the authority of the company to represent it, there is no reason for the court to disbelieve him unless it is shown evidence to the contrary [but] where no such contrary evidence is produced the omission of a company resolution cannot be fatal to the application….,.”

I respectfully subscribe to my brother MATHONSI J's views expressed supra. I would add, that, that approach has now become the commonly applied one in this jurisdiction when dealing with the subject under discussion.

I, however, do not agree with counsel for the applicant, that, the application before me is supported by the case he cited. He must have read piece meal what was stated in that case.

I am persuaded by counsel for the respondent's pertinent observation, that, African Banking Corporation of Zimbabwe Limited t/a BancABC v PWC Motors (Pvt) Ltd & 3 Others HH123-13, which counsel for the applicant sought to rely on for his contention, is distinguishable in that, in casu, the deponent has not averred that she has the applicant's authority to depose to the supporting affidavit or to launch the application for summary judgment.

This can be gleaned from paragraph 1 of her supporting affidavit.

In the absence of corporate resolution an averment by Guta, that she has authority to depose to the supporting affidavit, was essential and its absence is fatal.

In the event, I will uphold the point in limine, hence, there is no application for summary judgment before the court.

The other prong of the point in limine, that the deponent did not establish knowledge of the facts, was not pursued. It therefore need not detain me.

WHETHER THE RELIEF SOUGHT FOR COLLECTION COMMISSION IS COMPETENT

This relief is contained in paragraph 2 of the draft order.

The applicant, in its heads of argument, conceded, that, it is not entitled to collection commission. Accordingly, the applicant indicated that it was abandoning that claim.

The concession was properly taken in view of the case of Scotfin Ltd v Ngomahuru ex parte Law Society of Zimbabwe: In Re Scotfin Ltd v Ngomahuru 1998 (3) SA 466 (ZH) which outlawed recovery of both collection commission and attorney–client costs in the same claim unless the delinquent debtor had agreed to pay both charges in the main agreement and only in respect of trade debts and uncontested claims.

This point in limine had therefore been validly raised.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.

CLAIM DEFECTIVE FOR WANT OF COMPLIANCE WITH RULE 13(4) OF ORDER 3 OF THE HIGH COURT RULES 1971

Rule 13(4) of the High Court Rules provides as follows:

“(4) Subject to sub-rule (5), where the amount claimed includes capital and interest on the capital, the particulars endorsed on the summons in terms of subrule (1) shall state clearly –

(a) The capital amount claimed; and

(b) The total amount of interest claimed on the capital as at the date of the summons or as at an earlier date specified in the particulars; and

(c) Whether or not interest is claimed on the total amount of capital and interest referred to in paragraph (a) and (b), and, if not, the amount in respect of which any interest is claimed and the date which interest is to run.”

It is not disputed that the claim, as particularized in the summons, does offend against the provisions of Rule 13(4) of the High Court Rules quoted above.

The amount of interest claimed on the capital is not stated, and, also, the effective date from which interest is supposed to run.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i) The first relates to the averment, that, via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the balance would be written off.

The respondent accepted the offer, the arrangement became binding between the parties, and that agreement has not expired.

It is not enough for the applicant to simply allege, in passing, that the respondent has not furnished such proof, as alleged, in an endeavour to dispute the allegation.

If the applicant could not have been aware of this allegation, at the time of filing the application, then, in terms of Rule 67(c) of the High Court Rules 1971 the applicant should have applied to supplement its affidavit with a further affidavit to cover that lacuna.

The fact it did not do so can safely be inferred to mean that the averment was not being disputed.

(ii) The second, and more cogent, relates to the exact amount the respondent allegedly owes the applicant if account is had to annexure “A”.

The claim avers, that, the amount owed is for rates arrears in the sum of $86,927=90 from June 2012 up to June 2014.

However, a perusal of annexure “A” reveals that the applicant's computation of the amount claimed is effective from February 2009 up to July 2014.

Over and above that, ex facie annexure “A” it is apparent that the applicant factors in water levy, road levy, sewerage, solid waste, and the monthly interest of 6% in addition to the rates.

As correctly argued by the respondent, this brings into sharp focus the question of whether or not part of the claim has not prescribed and also the accuracy of the computation of the exact amount that is due.

Given the forgoing material disputes of facts, it is quite clear, that, the respondent has a bona fide defence to the applicant's claim, and, in the result, the application for summary judgment is dismissed with costs.

HB59-15 : NOMUSA NCUBE (as Executrix Dative of Estate Late Alice Nkala) vs GOODWILL NKALA
Ruled By: MOYO J

This is an opposed application for summary judgement wherein the applicant seeks the following relief:

“(1) That summary judgment be and is hereby granted in favour of applicant against respondent in the following terms:

(a) Respondent and all those claiming occupation through him be and are hereby ordered to vacate House Number F90 Mzilikazi, Bulawayo.

(b) The agreement of sale of House Number F90 Mzilikazi, Bulawayo, entered into between applicant and one Berthi Moyo on the 13th December 2013 be and is hereby confirmed.

(c) Costs of suit at an attorney and client scale.”

The background of this matter is that the applicant is the executor testamentary of the estate of the late Alice Nkala.

In winding up the estate, the applicant has sold the immovable property which is the subject matter of these proceedings, namely, Stand F90 Mzilikazi, to one Berthi Moyo.

The respondent is a son to the late Alice Moyo and also a beneficiary of her estate.

The respondent claimed the sum of $8,000 for improvements made to the immovable property in question. He was granted such an order and was also ordered to clear all municipal bills relating to the property.

The respondent, through its legal practitioners of record, offered to purchase the aforenamed immovable. This was, however, not reduced to writing.

On 7 June 2013, correspondence was sent to the respondent's legal practitioners enquiring if indeed the respondent intended to buy out the other beneficiaries in which case he was invited to come and make a payment.

The respondent never replied to such correspondence.

On 7 August 2013, the applicant wrote another letter inviting the respondent to respond to their earlier correspondence.

On 29 October 2013, the applicant wrote yet another letter to the respondent wherein he was advised that the applicant was proceeding to sell the property as the respondent had failed to come forward with payment nor respond to the previous correspondence.

On 9 December 2013, the applicant, through Sapphire Real Estate, proceeded to sell the house to one Berthi Moyo.

On 3 February 2014, the applicant advised the respondent, through a letter, that, the house had been sold.

The respondent did not even bother responding to the applicant's letter.

On 17 March 2014, the respondent wrote a letter, responding to the applicant's letter dated 29 October 2013. The respondent alleged, that, he had transferred $8,157=53 for the purchase of the house.

This transfer was done without the assent of the applicant's legal practitioners.

On 25 March 2014, the respondent wrote a letter to the applicant advising that he would not vacate the house neither did he recognize the sale to Berthi Moyo.

In his plea, the defendant (respondent) avers, that, the purported sale was unlawful as it was not done in accordance with the law. He further avers, that, the beneficiaries were not consulted on the sale neither did they assent to it.

The Remedy of Summary Judgment at Law

Summary judgement is a drastic remedy as it negates a fundamental principle in the administration of justice, the audi alteram partem rule: refer to the case of Shingadia v Shingadia 1966 RLR 285.

In Rex v Rhodesia Investments Trust (Pvt) Ltd 1957 R & N 723, it was held, that, for a defendant to defeat an applicant for summary judgment he must allege facts, which, if he can succeed in proving them at trial, would entitle him to succeed in his defence.

In Hughes v Lotleit 1985 (2) ZLR 179, it was held, that, summary judgment will only be granted where the plaintiff has made out a cause of action to which the defendant has no possible defence.

In Jena v Nechipote 1986 (1) ZLR 29 it was held, 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.”

In this case, the defendant is challenging the validity of the sale by the applicant to Berthi Moyo as it contravenes section 120 of the Administration of Estates Act [Chapter 6:01].

Section 120 of the Administration of Estates Act provides as follows:

“If, after due enquiry, the Master is of the opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate, otherwise than by way of public auction, he may, if the will of the deceased contains no provision to the contrary, grant, the necessary authority to the executor so to act.”

Section 120 of the Administration of Estates Act has been held, in certain cases, to be peremptory - especially in testate estates like the one before me.

I find that the estate is testate for the simple reason that the Letters of Administration state, that, the applicant is an executor testamentary meaning that she was appointed so in terms of a will left by the deceased.

Such an opinion is made in the case of Songore v Gweme and Two Others HH90-08.

The validity or otherwise of the sale to Berthi Moyo, by the applicant, without obtaining the Master's consent, is a contestable point in my view.

It cannot be held, that, the defendant has failed to raise a defence that could possibly be true in these circumstances. This court cannot shut the door on the defendant in such circumstances.

In the result, the application for summary judgment is dismissed with costs.

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.

The facts of this matter are largely common cause:

The respondent was employed by the applicant. With the passage of time, the apparently benevolent employer, being the applicant, decided to sell some of the houses to some employees who were sitting tenants.

Some sort of agreement was entered between the applicant, represented by its General Manager and Financial Director, and the employees, represented by the Workers Committee members being the Chairman and two Committee members.

The said agreement or memorandum is dated 1 December 2003 and is in the following terms;

“MEMORANDUM OF AGREEMENT BETWEEN ASHANTI GOLD FIEDS MANAGEMENT AND EMPLOYEES

Ashanti Goldfield 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 01 December 2003. Find the agreed prices attached.”

The said agreement is attached to the applicant's founding affidavit as Annexure F1 to F4.

Attached to this agreement is a schedule which has a list of the employees involved, the house they occupy, the value of each house (in Zimbabwe dollars) and the monthly instalments or repayment each employee was to pay.

The respondent occupied House No.1131 which was then valued at Zimbabwean dollars $1,200,000 and was to pay a monthly instalment of Zimbabwe $20,000.

Pursuant to the signing of the Memorandum of Agreement explained above, and on 12 December 2003, the applicant and the respondent entered into what is called “Agreement of Lease” in which the applicant agreed to lease House No.1131 Chipadze, Bindura (the house) to the respondent for a period of 60 months (5 years) commencing 1 January 2004 at the monthly rentals of Zimbabwean $20,000 which was reviewable in accordance with Annexure 'A' to that lease agreement (which provided for revaluation of the property whenever employees are awarded a salary increment).

These monthly rentals were deducted from the respondent's salary.

Clause 3 of the lease agreement provided for the option to buy the house. It provides as follows;

“3. OPTION TO PURCHASE

3.1. The lessee shall have the option to purchase the property after sixty months.

3.2. The rentals paid by the Lessee to the Lessor in terms hereof shall be taken and be deducted from the amount due in respect of the purchase price determined in accordance with the provisions of Clause 3.1. (above).”

The lease agreement is signed by a representative of the applicant and the respondent.

From other decided cases I have been referred to, dealt with by this court, it is common cause that a number of employees entered into such a lease agreement.

It would appear to my mind, that, the dispute in this case, and other cases already dealt with by this court, relates to interpretation to be accorded to the “Memorandum of Agreement” dated 1 December 2003 and the lease agreement dated 12 December 2003 and the relationship between the two documents.

I shall revert to this point later.

After the issuing of the Memorandum of Agreement, on 1 December 2003, and before the signing of the lease agreement, on 12 December 2003, the Workers Committee, through what was now called the Housing Committee, issued out a Memorandum to all employees of the applicant copied to the applicant.

This Memorandum explained the Agreement reached on 1 December 2003. Most importantly, it invited the employees who were sitting tenants to take up the offer to buy the houses.

The relevant part of this Memorandum, dated 2 December 2003, reads as follows;

“Please note that you have until February 29, 2004 to decide whether to purchase the house you are living in or not, after which date the offer will be extended to an employee who is willing to purchase the property. The offer is now open, therefore, employees who are ready can see the Members to formalise the purchase.”…,.

It was after this invitation that the respondent entered into the lease agreement with the applicant on 12 December 2003.

In addition to that, the respondent has attached as Annexures A1 to A3 his payslips which reflect that money was deducted from his salary which money is reflected as “rent to buy”.

The payslips are as follows;

A1, dated 31 October 2004, has a deduction indicated as “Bal rent to buy $52,755”

A2, dated 25 March 2004, has a deduction indicated as “Bal rent to but $116,000”

A3, dated 25 June 2004, has a deduction reflected as “Bal rent to buy $56,895”

The respondent has also attached to his opposing affidavit a memorandum from the applicant, written by the applicant's Financial Controller to the respondent and copied to the Housing Committee dated, 14 March 2004. Its contents are as follows;

“This memo serves as an acknowledgement that we have received $1,100,000 (one million one hundred thousand dollars) as payment towards yours house. The outstanding balance is now $60,000 (sixty thousand dollars).”

It is common cause that the respondent, who was employed by the applicant, and was the sitting tenant in this house as at 1 December 2003, was summarily dismissed on 15 July 2009 following a disciplinary hearing held in terms of their Code of Conduct.

This means, that, as at the date of his dismissal, the respondent has been in occupation of the house for a period of sixty seven (67) months - which is in excess of the sixty months stipulated in the Lease Agreement dated 12 December 2003.

After the dismissal, on 15 July 2009, the respondent, on 4 September 2009, was advised to vacate the house on the basis that the lease agreement which entitled him to occupy the house had lapsed due to the termination of the respondent's contract of employment (see Annexure D to the applicant's founding affidavit).

The respondent refused to vacate the house.

This prompted the applicant to issue summons out of this court in HC4395/09 (main matter) seeking the eviction of the respondent and all those claiming occupation through him and costs of suit.

The respondent entered an appearance to defend and filed a plea, which plea had been dismissed by the applicant as not raising a good prima facie defence, culminating in this application for summary judgement.

It is useful, at this stage, to deal with the respondent's plea (Annexure E to E4 to the applicant's founding affidavit).

In his plea, the defendant stated, that, prior to 1 December 2003, he was occupying the house in issue on the basis of the contract of employment and that since 1 December 2003 he was now occupying the house on the basis of a sale agreement.

The respondent said he has since fully paid for the house and awaits the transfer of the house into his name.

It is the respondent's contention, that, the lease agreement dated 12 December 2003 was the vehicle through which the respondent, and other employees, purchased the houses as they paid for the houses through the process of rent to buy with the monthly repayments deducted from their salaries.

The respondent, in his plea contends, that, he has now acquired rights and interest in the same house hence the applicant cannot evict him from the house.

In fact, the respondent proceeded to file a counter-claim seeking an order to compel the applicant to transfer its rights, interest, and title in the said house to the respondent within 30 days of the grant of such an order and costs of suit.

The question to be addressed in this matter is whether, given the facts I have painstakingly outlined, the applicant is entitled to this extraordinary remedy in the form of a summary judgment?

An application for summary judgment is made in terms of order 10 Rule 64 of the High Court Rules 1971 in circumstances where the applicant is of the belief that the respondent has no bona fide defence to his action.

The respondent may oppose such an application in terms of Order 10 Rule 66(1)(b) of the High Court Rules by showing that he has got a prima face defense to this action.

The law, in relation to the requirements for granting a summary judgment, is clear.

The old case of Roscoe v Stewart 1937 CPD 138 which is cited by the celebrated authors HERBSTEIN and Van WINSEN – Civil Procedure of The Superior Courts In South Africa, 2nd Edition…, makes the point, that, summary judgement is a remedy designed to eliminate or dispose of bogus defences and defences which are bad at law.

The mischief which is curbed by this drastic remedy is to prevent unscrupulous litigants seeking to delay a clear and just claim by raising frivolous defences: see Nedlaw Investments & Trust Corporation Limited v Zimbabwe Development Bank SC05-00 in which it was clearly stated that;

“…, the quintessence of the drastic remedy is that a plaintiff, whose belief is that the defendant's defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.”

In order to successfully fend off an application for summary judgment, a defendant has to show that he has a good prima facie defense to the action.

Our courts have had the opportunity to define what constitutes a good prima facie defence.

In the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, has this to say;

“…, he must at least disclose his defense, 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: Haharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defense to the plaintiff's claim.”

Having laid out these principals of law applicable to this case, I now proceeded to apply these principles to the facts of this case.

The applicant believes, that, the appearance to defend entered by the respondent, and his subsequent plea, do not disclose a bone fide defence but was solely entered for purposes of delay.

In argument, the applicant submitted, that, there was never an agreement of sale between the applicant and the respondent.

It is the applicant's view, that, the memorandum of agreement, dated 7 December 2003, cannot be construed as an agreement of sale, and, reliance was placed on the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in which CHEDA JA had to interpret this same document and clearly stated, that, it cannot be said to be an agreement of sale.

Similarly, the applicant submitted, that, the lease agreement, dated 12 December 2003, cannot be construed also on an agreement of sale as it merely provides, in Clause 3, that, an option to purchase this property would be offered to the respondent after sixty months.

The applicant's case, therefore, is that the agreement of lease, having been terminated after the respondent left the employ of the applicant, the respondent has no right, whatsoever, to remain in the house as the applicant remains the registered owner of the house.

While it is correct, that, the pronouncements of the Supreme Court are binding to this court, I believe the case in which the applicant seems to have reposed all his faith in, of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09, can be distinguished from the facts of this case.

In fact, MAKARAU JP…, in a number of cases involving the applicant and its employees, in Antonio v Ashanti Goldfields Zimbabwe & Anor; Mujati v Ashanti Golfields Ltd & Anor; Ashanti Goldfieds Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H)…, distinguished Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 as follows;

“I am bound by all the decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret their facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

A number of my brother and sister judges who have been seized with matters involving the applicant and its employees, in relation to these houses, have adopted the approach enunciated by MAKARAU JP…, in arriving at a different conclusion, on the facts presented in each particular case, despite the sentiments expressed in Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in relation to the Memorandum of Agreement, dated 7 December 2003, and the Lease Agreement dated 12 December 2003.

Few examples are sufficient to illustrate this point.

In the case of Ashanti Goldfields Zimbabwe Ltd v Jhafati Mdala HC5664/07 CHATUKUTA J, after a protracted trial, did find, that, on the facts presented before her, inclusive of the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement dated 12 December 2003, indeed, Ashanti Goldfields Zimbabwe Ltd had sold the house to the defendant.

In the case of Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura & Ors HH54-11, GOWORA J…, declined to grant a summary judgment wherein the applicant had sought the eviction of the respondents; whilst the respondents had advanced a similar argument like in the instant case. Indeed, the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement, similar to one dated 12 December 2003, were some of the documents in issue in that case.

Lastly, in the case of Govha v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine & Anor HH48-12, and, in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze HH347-12 MATHONSI J, in both cases, faced with facts almost on all fours with the present case, declined to grant a summary judgement in both cases for the eviction of the respondents (employees).

It is clear from the facts of this case that the respondent has raised a good prima facie defence to the action for eviction.

The Memorandum of Agreement, dated 1 December 2003, which I have alluded to in my introductory remarks, shows, that, the respondent was one of the sitting tenants who were eligible to purchase the house in issue. The respondent contends, that, he acted in terms of the Memorandum, dated 2 December 2013, which invited all employees who were sitting tenants to exercise the offer to purchase the houses as at 29 February 2004.

In fact, the respondent argues, that, he proceeded, in exercising this option, to enter into a lease agreement, dated 12 December 2003, which he described as the vehicle with which the employees were to purchase the houses, as they all started to pay what was called “rent to buy”.

Indeed, the respondent attached some of his payslips, for 2004, which show that monthly deductions in various amounts were made as “rent to buy”.

In addition to that, the respondent has included a memorandum from the applicant, addressed to him, acknowledging receipt of $1,100,000 towards the purchase of house, and indicating that outstanding balance as $60,000 only.

As already stated, the respondent was in occupation of this house (as a sitting tenant) for a period in excess of 60 months (Clause 3 of the lease agreement) before he was dismissed from work and the lease agreement purportedly terminated.

Considering all these the factors placed before the court by the respondent, one cannot say, with certainty, at this stage, that the respondent did not exercise the option to purchase the house in issue.

The applicant has not been able to meaningfully explain why, after a period of 60 months, and in view of the proof of monthly deductions and confirmation by the applicant of such payment as part of the purchase price, in March 2004, the applicant is still of the view that the respondent did not purchase the house.

I am satisfied that the respondent has presented an arguable case.

It cannot be said that the defence raised by the respondent is simply raised for purposes of delaying the inevitable. It would therefore be unfair and improper, and this stage, to close the door to the defendant and deny him the opportunity to defend the claim.

On the facts before me, it cannot be said, that, the applicant's case is unanswerable and unassailable.

The parties should be allowed to have their day in court and present evidence on whether the respondent exercised the right to purchase the house in issue and paid the full purchase price.

The claim for eviction, at this stage, is premature.

The application for summary judgment is therefore without merit. In the result, the summary judgement application is dismissed with costs.

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Summary Judgment: Clear and Unanswerable Claims re: Approach

HH136-15 : LEWIS NDHLOVU and CHIPO NDHLOVU vs SUSAN HARUPERI
Ruled By: MATHONSI J

HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA
Ruled By: BERE J and MATHONSI J

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO
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Ruled By: TAGU J

View Appeal
HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

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Ruled By: BHUNU J

HH215-15 : AMIEL MATINDIKE vs DUFFY MITCHELLE PROPERTY INVESTMENTS (PVT) LTD T/A K. M. AUCTIONS and THE SHERIFF OF ZIMBABWE
Ruled By: MUREMBA J

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

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Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

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Ruled By: MUTEMA J

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Ruled By: MATHONSI J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J

HH586-14 : WELLINGTON TAKAWIRA vs CZI INCORPORATED (PVT) LTD
Ruled By: UCHENA J

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA
Ruled By: TAKUVA J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO
Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

HB59-15 : NOMUSA NCUBE (as Executrix Dative of Estate Late Alice Nkala) vs GOODWILL NKALA
Ruled By: MOYO J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

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Law Portal Zimbabwe

Summary Judgment: Clear and Unanswerable Claims re: Approach

HH136-15 : LEWIS NDHLOVU and CHIPO NDHLOVU vs SUSAN HARUPERI Ruled By: MATHONSI J

HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA Ruled By: BERE J and MATHONSI J

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO Ruled By: MATHONSI J

HH155-15 : TAYESA BANDA vs VUSANI G.D. SIBANDA and ORRIL ENTERPRISES (PVT) LIMITED Ruled By: TAGU J

View Appeal HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS Ruled By: MATHONSI J

HH209-15 : NATIONAL FOODS OPERATIONS vs PERFECT BAKERY (PVT) LTD and GIFT MABVUNZA Ruled By: BHUNU J

HH215-15 : AMIEL MATINDIKE vs DUFFY MITCHELLE PROPERTY INVESTMENTS (PVT) LTD T/A K. M. AUCTIONS and THE SHERIFF OF ZIMBABWE Ruled By: MUREMBA J

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA) Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP Ruled By: CHIKOWERO J

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU Ruled By: MAKONESE J

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO Ruled By: MUTEMA J

HH88-12 : BLUMO TRADING (PRIVATE) LIMITED t/a COLCOM COMMODITIES vs MORGAN MUDUVURI Ruled By: MATHONSI J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA Ruled By: MATHONSI J

HH586-14 : WELLINGTON TAKAWIRA vs CZI INCORPORATED (PVT) LTD Ruled By: UCHENA J

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA Ruled By: TAKUVA J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES Ruled By: TAKUVA J

SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD Ruled By: MUTEMA J

HB59-15 : NOMUSA NCUBE (as Executrix Dative of Estate Late Alice Nkala) vs GOODWILL NKALA Ruled By: MOYO J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA Ruled By: MAWADZE J

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Law Portal
Zimbabwe

HH136-15 : LEWIS NDHLOVU and CHIPO NDHLOVU vs SUSAN HARUPERI
Ruled By: MATHONSI J

HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA
Ruled By: BERE J and MATHONSI J

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO
Ruled By: MATHONSI J

HH155-15 : TAYESA BANDA vs VUSANI G.D. SIBANDA and ORRIL ENTERPRISES (PVT) LIMITED
Ruled By: TAGU J

View Appeal
HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

HH209-15 : NATIONAL FOODS OPERATIONS vs PERFECT BAKERY (PVT) LTD and GIFT MABVUNZA
Ruled By: BHUNU J

HH215-15 : AMIEL MATINDIKE vs DUFFY MITCHELLE PROPERTY INVESTMENTS (PVT) LTD T/A K. M. AUCTIONS and THE SHERIFF OF ZIMBABWE
Ruled By: MUREMBA J

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP
Ruled By: CHIKOWERO J

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU
Ruled By: MAKONESE J

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO
Ruled By: MUTEMA J

HH88-12 : BLUMO TRADING (PRIVATE) LIMITED t/a COLCOM COMMODITIES vs MORGAN MUDUVURI
Ruled By: MATHONSI J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J

HH586-14 : WELLINGTON TAKAWIRA vs CZI INCORPORATED (PVT) LTD
Ruled By: UCHENA J

HB03-15 : LUBECK INVESTMENTS (PVT) LTD t/a HIGHER LEARNING CENTRE vs BESTER DUNDUZA
Ruled By: TAKUVA J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO
Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

HB59-15 : NOMUSA NCUBE (as Executrix Dative of Estate Late Alice Nkala) vs GOODWILL NKALA
Ruled By: MOYO J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J