TAKUVA J: This is an
application for summary judgment, where in the plaintiff claims the following;
(i)
Payment of the sum of US$30 763-50
(ii)
Interest on the sum of $30 763-50 at the prescribed rate per annum from 23
August 2012 to the date of payment in full,
(iii)
2.5 % collection commission in the sum of US$5 600-00
(iv)
Liquidated damages in the sum of US$5 600-00
(v)
Costs of suit on a legal practitioner and client scale.
In its declaration the plaintiff
pleaded the cause of action between the parties as breach of written Billboard
Advertising Rental Agreements. In respect of the first agreement, the
defendant rented two of plaintiff's bill boards in order to display defendant's
advertisements.
The material terms and conditions of
the first agreement were as follows
(i)
the agreement commenced on 1 September 2011 and was to expire on 31 August
2012,
(ii)
defendant was to pay rentals in the sum of US$700-00 per month per billboard, a
total sum of US1 400-00 per month, with all invoices being payable within
seven(7) days from the date of the invoice,
(iii)
in the event of breach by defendant , defendant acknowledged that it would be
further liable for the following:
(a)
in the event of termination of the agreement by plaintiff, liquidated damages
equal to the total of the rental charges that would have been payable under the
agreement if not terminated as a result of defendant's breach,
(b)
collection commission on the sum owed by defendant
(c)
legal costs incurred by plaintiff in pursuing any outstanding amounts on a
legal practitioners and client scale.
Plaintiff and defendant entered into
a second written Billboard Advertising Rental Agreement whereby the defendant
rented two additional billboards from plaintiff on the same terms as the first
agreement save that the second agreement commenced on 1 February 2012 and was
to expire on 31 December 2012.
Defendant breached its obligations
by failing to make payment of the rental charges owed to plaintiff in terms of
both the first and second agreements and accumulated arrears in the total sum
of US$32 763-50. Defendant made a payment of US$2 000-00 towards the
outstanding balance on or around 6 August 2012. Defendant made no further
payments. By letter dated 17 July 2012 defendant acknowledged the debt of
US$ 32 763-50 and undertook to repay same in monthly installments of US$6
000-00, the first payment being due and payable by 31 July 2012.
When the first agreement expired on
31 August, the plaintiff did not renew it. On 23 August 2012, the plaintiff
terminated the second agreement. This led the plaintiff to claim as shown
above.
The application for summary judgment
was opposed on the following grounds.
(a) the applicant
lacks locus standi in that the party that has instituted proceedings
against the respondent is not the one that entered into an agreement with the
respondent. The respondent contracted with Continental Outdoor (Pvt)
Limited and not Continental Outdoor Media (Pvt) Limited the applicant in this
matter. It was submitted that the effect of such incorrect citation is
that there essentially is no plaintiff and or applicant in the summons and
application for summary judgment respectively. Respondent relied on
the principle in Stewart Scott Kennedy v Mazongororo Syringes (Pvt)
Ltd 1996 (2) ZLR 65 at 572 D and Gariya Safari (Pvt) Ltd v Vaninyk
1997 (2) ZLR 246 (H).
(b) that, applicant
cannot competently claim costs on a higher scale of attorney and client
scale and collection commission simultaneously.
(c) that applicant
breached the second agreement which commenced on 1 February 2012 by its failure
to flight “new advertisement materials” on the billboards. Consequently,
the amount due and payable to the applicant has always been in dispute.
This dispute arises from applicant's failure to display respondent's materials
on its billboard at site NO. HAR0012. Such failure disentitles the
applicant from claiming the full rental for the month of July 2012.
(d) that the respondent
has a strong bona fide case.
In respect of the first ground,
applicant filed an answering affidavit and notice to apply for its
admission. It was contented in that affidavit that the applicant shall
apply at the hearing of the application to amend the pleading to correct the
mis-description of the applicant as “Continental Outdoor Media (Pvt) Ltd” and
to instead read “Continental Outdoor (Pvt) Ltd.” The affidavit and
applicant's heads of argument were served on the respondent who dealt with this
point in extenso in its heads of argument.
At the hearing the parties legal
practitioners made oral submissions. Respondent's contention was that the
filing of an answering affidavit was unprocedural in that in such applications
no answer is permissible. Reliance was placed on the following cases;
(a)
Stationery Bex (Pvt) Ltdv Natcon (Pvt) Ltd and Farai Ndemera HH
64/10
(b)
Matanhire v BP Shell Marketing Services (Pvt) Ltd SC 113/04 and
(c)
BGM Traffic Control Systemsv The Minister for Transport & 2 Ors
HH 12/2009
Respondent finally submitted that
the answering affidavit should not be accepted for want of compliance with the
rules of court.
In my view the starting point is Or
10, r 67 which states;
“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”
See also Kinstons Ltd v L.D.
Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) where ZIYAMBI JA held that, “theproviso
to r 67 of the High Court Rules 1971 does not give a plaintiff in summary
judgment proceedings a licence to dispense with the provisions of the main rule
itself which clearly prohibits him from adducing evidence except through his
affidavit. The purpose of the proviso is not to enable a plaintiff
to reply to respondent's affidavit otherwise summary judgment proceedings would
develop into a court application. The proviso therefore is to be restrictively
interpreted.”
In casu, the respondent introduced a new
matter in his opposing affidavit objecting to the misdescription of the
applicant. The applicant could not reasonably be expected to have dealt
with this point in its first affidavit because the description it gave in the
summons is the same as the one in its letters of demand and the
agreements. The respondent in its response to the letters of demand, did
not take the point that applicant's name had not been cited
properly. Further, it is clear from the papers that an entity answering
to the name of the applicant is in existence and it is also clear that such an
entity had a business relationship with the respondent. The amendment
sought will simply clarify who the proper applicant is. It certainly does
not prejudice the respondent in anyway. It is a common error made by both
parties right from the beginning.
In Scotfin Ltd v African
Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170 it was stated that “Let me say,
in passing that I consider 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 is not bona fide or is ill founded.”
In Gariya Safaris (Pvt) Ltd v
Vanwyk 1996 (2) ZLR246, the position was stated thus;”The general rule
is that a court should allow the substitution of one party for another by the
amendment of summons, or pleadings. In exceptional circumstances may a
court amend a judgment. In each case the test is whether there is
prejudice to any of the parties which cannot be compensated by an order for
costs. The court must also be satisfied that the new person is a
necessary and proper party to be before it, so that it may effectually and
completely determine the cause between the existing parties.” (my emphasis)
I must also point out that it is not
a question of what the affidavit is called, but rather its contents. The
rules simply refer to a further affidavit supplementing the first
one. Therefore the court should not be impaired by technical formalism.
For these reasons, the point in
limine is dismissed and the amendment sought by the applicant is here by
granted.
I now turn to the merits of the
case. The applicant conceded that it was not competent to claim legal
costs on the higher scale of attorney and client and collection commission at
the same time. The applicant filed an amended draft order excluding these
claims. Quite clearly the concession is properly made and the claims are
hereby dismissed.
As regards the contention that the
amount due and owing has always been in dispute, it is necessary and
instructive to closely examine the undisputed facts or those incapable of
denial. These are;
(1)
Applicant and respondent entered into two written Billboard Advertising Rental
Agreements whereby respondent rented four(4) of applicant' billboards in order
to display respondent's advertisements as follows;
(a)
the first agreement commenced on 1 September 2011 and was to expire on 31
August 2012 and was for the rental of the following sites
(b)
(i) Site No. HAR 0024
(ii)
Site No. HAR 0012
(c)
the second agreement commenced on 1 February 2012 and was to expire on 31
December 2012. It was for the rental of Site No. HAR 0415 and HAR
0484.
(2)
In total breach of its obligations, respondent failed to make payment of the
rental charges owed to applicant in terms of these agreements resulting in
respondent accumulating arrears in the total sum of US$27 933-50 as at June
2012. On 26 June 2012, applicant wrote to respondent requesting an
urgent meeting to discuss payment of this debt. On 17 July 2012,
respondent acknowledged the sum due to the applicant i.e $27 933-50 and
proposed a payment plan of US$6 000-00 per month commencing 31 July 2012
– see Annexure E on page 18 of the record.
(3)
Respondent's payment plan was accepted by the applicant and as the billboard
site NO HAR 0012 had been undergoing renovation since 1 July 2012, respondent's
material remained flighted on three of applicant's billboards at sites
HAR0024, HAR0415 and HAR0484 respectively. Further rental charges for
these billboards in the sum of US$805-00 per billboard per month accrued for
the months of July and August 2012.
(4)
Respondent defaulted on its undertaking to make payment of US$6 000-00 by 31
July 2012 and as at 1 august 2012, rental arrears in the sum of US$32 763-50
were outstanding as follows;
(a)
US$27 933-50 outstanding as at end of June 2012;
(b)
Rental charges in the sum of US$805-00 for billboard per month for three
bill boards for the month of July 2012, in the total sum of US$2
415- 00;and
(c)
Rental charge in the sum of US$805-00 per billboard per month for three
billboards for the month of August 2012 in the total sum of $2
415-00. Respondent made one payment of US$2 000-00 reducing the debt to
the sum of US$30 763-50 – see Annexure F on p 19 of the record.
Respondent then refused or failed to make any further payments resulting in
applicant cancelling the second agreement by letter dated 23 August 2012.
The first agreement expired on 31 August 2012 and was not renewed by applicant.
(5)
Applicant issued summons and declaration which were delivered upon respondent
on 6 November 2012. Respondent entered an appearance to defend through
its legal practitioners.
From the above chronology, it is
clear that the July 2012 rental for billboard on site No. HAR 0012 does not
constitute part of the debt claimed as due and owing by the applicant.
For that reason, I find that the third ground for opposing the application for
summary judgment is indeed a subterfuge that of necessity must meet its
inevitable fate, namely its paralysis. The argument collapses because in
my view it does not make mathematical sense at all. Consequently, the
argument that respondent has no bona fide defence is sustainable in so
far as the first component of the debt relating to rental charges is
concerned. The applicant has not said anything about the second component
of the debt namely the liquidated damages. All I can say is that in terms of
the second agreement applicant is entitled to claim liquidated damages equal to
the monthly rental for two billboards in the total sum of $1 400-00 per month
payable from the date of termination of the agreement being, 23 August 2012 to
the date of the expiry of the agreement, being 31, December 2012. The
total amount which is readily ascertainable under this head is $5 600-00.
For the respondent to succeed it
must satisfy the requirements set by ZIYAMBI JA in the Kingstons Ltd
case supra where it was stated that “In summary judgment proceedings,
not every defence raised by a defendant will succeed in defeating a plaintiff's
claim. What the defendant must do is to raise a bona fide defence,
or a plausible case, with sufficient clarity and completeness to enable the
court to determine whether the affidavit discloses a bona fide
defence. The defendant must allege facts which if established, would
enable him to succeed. If the defence is averred in a manner which
appears in all circumstances needlessly bald, vague or sketchy, that will
constitute material for the court to consider in relation to the requirement of
bona fides. The defendant must take the court to his confidence
and provide sufficient information to enable the court to assess his
defence. He must not content himself with vague generalities and
conclusory allegations not substantiated by solid facts.”
In casuthe respondent has failed to
establish that it has a bona fide defence to the claim.
Accordingly, it is ordered that:
(i) Respondent pay to applicant the
capital sum of US$30 763-50,
(ii)
Respondent pay to applicant interest on
the capital sum at the prescribed rate per annum from 23 August 2012 to the
date of payment in full.
(iii)
Respondent to pay to applicant liquidated damages in the sum of US$5
600-00
(iv)
Respondent pay applicant's costs on the ordinary scale.
Gill
Godlouton and Gerrans,
plaintiff's legal practitioners
Mawere and Sibanda, respondent's legal practitioners
