CHIGUMBA J: On 4 September 2013, under case number
HC6406/13, applicant obtained an order of this court, that Case Numbers
HC11294/11 and HC4709/13 be consolidated and heard as one matter. Respondent
had filed an application for summary judgment under case number HC11294/11, to
which applicant had filed opposing papers. Respondent had filed heads of
argument on 25 June 2012. Applicant filed its heads of argument on 23 July
2013, nineteen days after the stipulated period in terms of the rules of this
court. Upon realizing its dilemma, applicant made an application for upliftment
of bar and condonation of late filing of heads of argument on 17 June 2013,
under case number HC4709/13. Respondent opposed the application for
condonation. On 30 June 2013 respondent set down its application for summary
judgment for hearing. The court ordered that the two matters be consolidated
and heard as one. This court is now seized with the two applications. At the
hearing of the matter, the court directed that the application for condonation
be heard first, then proceeded to hear the application for summary judgment.
The court indicated that, in determining the two applications, if it declined
to grant condonation, the matter would end there.
The application for upliftment of bar and condonation, Case
number HC4709/13, was for the following relief:
1.
The application for condonation of late filing of heads of argument and
upliftment of bar be and is hereby granted.
2.
The bar operating against Zimplastics (Pvt) Ltd be and is hereby uplifted.
3.
A copy of the heads of argument attached to the application for condonation of
late filing of heads of argument be and is hereby placed before the court as
forming part of the record under case number HC11294/11.
4.
Costs be in the cause.
It was premised on a founding affidavit duly sworn to by
Portia Makurumure, the legal practitioner of record for the applicant. She
stated that she was authorized to depose to the affidavit, because the facts
therein were within her personal knowledge to the best of her information and
belief. She deposed to the fact that, on 24 June 2012, respondent filed and
served his heads of argument in the main application for summary judgment on
the applicant's legal practitioners of record's law firm. She stated that she
received the respondent's heads of argument, and drafted applicant's heads of
argument, which she unfortunately misfiled before they could be typed by her
secretary, in a different file, due to the fact that her firm was handling
numerous other files pertaining to the same parties. Ms Makurumure stated that
she only realized her mistake when she attempted to prepare a certificate of
service, when she had to search through all the files only to 'discover' that
the heads of argument had not been typed, or filed, or served. She concedes her
error, and accepts responsibility for the fact that her client's heads of
argument were filed nineteen (19) days out of time. She avers that her
explanation is not mala fide and that there was no willful disregard of or
contempt of the rules of this court.
Finally, applicant avers that no prejudice would be
suffered by the respondent if the bar operating against it were to be uplifted,
and the late filing of heads of argument condoned. A further averment proffered
on behalf of the applicant is that the application for summary judgment is a
matter of extreme importance to it, because it would suffer great financial
prejudice in the sum of US$78 000-00 if it were to remain barred. Applicant has
already filed and served the required heads of argument on the respondent, and
they form part of the record of proceedings. Applicant invoked the proviso
to rule 238(2a) of the rules of this court, on the basis that the heads
of argument were filed and served five days before the set down date. Applicant
averred that the application for summary judgment is not likely to succeed
because it contains disputes of fact which are only suitable of resolution by
way of action. Some of those disputes are that the quantum of the
applicant's indebtedness is not clear, and the question of whether the
respondent had been authorized by applicant's board of directors to advance
monies to applicant. It is alleged that these disputes are incapable of
resolution on the papers filed of record.
Respondent filed opposing papers on 25 June 2013. He raised
a point in limine, that the application for condonation was a nullity
because the averments contained in the founding affidavit were based on hearsay
evidence. Respondent contended that the deponent to the founding affidavit was
not privy to what transpired during board meetings and was not present when the
decision to loan and advance monies to the applicant was made. It was contended
on behalf of the respondent that only a person who “…saw, heard or otherwise
perceived the statement being made.'could depose evidence of it. Respondent
relied on s 27(3)(a) of the Civil Evidence Act [cap8:01] as authority for this
proposition. Applicant relied on the case of Dr Ibbo Mandaza t/a
Induna Development Projects vMzilikazi Investments (pvt) Ltd HB23/07, as
authority for the proposition that:
“…generally…a legal practitioner should not depose to a
founding affidavit on behalf of a client… but there is an exception to this
general rule. If the facts are within the knowledge of a legal practitioner (he
may swear to an affidavit on behalf of the client)”
Applicant also relied on Order 32, r 227(4) which provides
as follows:
“(4) An affidavit filed with a written application—
(a) shall be made by the applicant or respondent, as the case may be, or
by a person who can swear to the facts or averments set out in therein;”
With respect to counsel for the respondent I don't find the
hearsay argument persuasive in regards to the application for condonation of
late filing of heads of argument where the deponent to the founding affidavit
is the person who can testify as to why she failed to file the heads of
argument on time. The heads of argument were prepared by the legal practitioner
at her law firm. She is the author of the applicant's misfortune. She is best
placed to appraise the court of the reason why she was dilatory in filing the
heads of argument on time. However, I accept that the submissions by counsel
for the respondent are spot on when it comes to matters that transpired in
board meetings to which the legal practitioner for the applicant was not
present.
The court considered the submission made on behalf of the
respondent that the explanation proffered on behalf of the applicant was not
acceptable, and that it was inadequate because it failed to comply with the
legal requirements of an application for condonation. That there must not only
be an acceptable explanation for failing to comply with the time limits, but an
acceptable explanation for failing to apply for condonation timeously.
Respondent relied, as authority for this proposition, on the case of Viking
Woodwork (pvt) Ltd v Blue Bells enterprises (pvt) Ltd 1998 (2) ZLR 249 (s) @
251 where the Supreme Court stated that:
“…What calls for some acceptable explanation, is not only
the delay in noting an appeal and in lodging the record timeously, but also the
delay in seeking condonation”.
It is my view that the Viking Woodwork case sought
to be relied on by the respondent is distinguishable from the facts of this
case for the reason that it dealt with a contravention of Order9, r 63 of the
rules of this court which sets out a calendar month as the time within which
one can apply for rescission of judgment. This is materially different from
Order 32 r 238 (2a) whose proviso (ii) appears to give a respondent a second
bite of the cherry by stipulating that respondent ought to file its heads of
argument within ten days of the date of service of applicant's heads on it, or
failing which, at least five (5) days before the date of hearing. The facts of Viking
Woodwork are also materially different from those under consideration
because in that case the delay in seeking condonation was for a more
considerable period.
The factors which the court should consider in determining
an application for condonation are clearly set out in Herbstein
& van Winsen's The Civil Practice of the Supreme Court of South Africa 4 ed
by van Winsen, Cilliers and Loots at pp 897-898 as follows:
"Condonation of the non-observance of the rules is by
no means a mere formality. It is for the applicant to satisfy the court that
there is sufficient cause to excuse him from compliance… The court's power to
grant relief should not be exercised arbitrarily and upon the mere asking, but
with proper judicial discretion and upon sufficient and satisfactory grounds
being shown by the applicant. In the determination whether sufficient cause has
been shown, the basic principle is that the court has a discretion, to be
exercised judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides in which the court will endeavour to
reach a conclusion that will be in the best interests of justice. The factors
usually weighed by the court in considering applications for condonation ...
include the degree of non-compliance, the explanation for it, the
importance of the case, the prospects of success, the respondent's interest in
the finality of his judgment, the convenience of the court and the avoidance of
unnecessary delay in the administration of justice." See Kodzwa v
Secretary for Health & Anor 1999 (1) ZLR 313 (SC)
Order 32 r 238 (2a) of the High Court rules
1971 provides that:
“(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.”
Applicant averred that it filed its heads of argument
nineteen days after respondent had served its own heads on it, but at least
five days before the hearing date. Applicant falls squarely within the ambit of
proviso (ii) to r 238 (2a). I do not find applicant's nineteen day failure to
comply with the rules of this court deliberate, willful, or mala fide. Similarly,
the delay in seeking condonation was not occasioned by malice, but by the
correct belief that applicant was exonerated by proviso (ii) to rule 238(2a).
There is no evidence of a deliberate flouting of the rules. The explanation
proffered shows evidence of some carelessness, but I do not find it inadequate
or insufficient. Respondent has not supplied the court with prima facie
evidence of the prejudice that it is likely to suffer if condonation is
granted, which nature of prejudice would not be remedied by an appropriate
order as to costs. For these reasons, the application for condonation of late
filing of heads of argument is granted, with costs remaining in the cause.
Respondent vigorously denied that its application for
summary judgment was bad at law, and that it was not likely to succeed, on the
papers before the court. Under case number HC11294/11, the respondent in the
application for condonation that the court has disposed of above, Mr. Roly
Corbett, was the applicant, and Zimplastics Private Limited (hereinafter
referred to as Zimplastics) was the respondent. Mr. Corbett deposed to the
founding affidavit and stated that, on 26th august 2011, he had
caused summons to be issued under case number HC8359/11, against Zimplastics
for payment of US$78 998-88(seventy eight thousand nine hundred and ninety
eight United States dollars and eighty eight cents), being an amount due and
payable to him by the Zimplastics, in respect of monies loaned and advanced to
Zimplastics, at Zimplastics' special instance and request, which monies
remained outstanding, together with interest thereon at the prescribed rate,
collection commission and costs of suit.
Zimplastics entered appearance to defend the matter on 8
September 2011. The applicant Mr. Corbett, believing that Zimplastics did not
have a bona fide defense to his claim, and that it had entered appearance to
defend only for purposes of delaying the proceedings and postponing the date of
payment, applied for summary judgment. Mr Corbett averred in his founding
affidavit that he had a clear and unassailable case against Zimplastics that
Zimplastics had no bona fide defense, and that Zimplastics entered appearance
to defend purely for purposes of delay. Applicant stated that it loaned and
advanced monies to the respondent during the period February 2009 to February
2011, in various sums amounting to US$78 998-99, which sum became due and owing
as at February 2011. According to Mr Corbett Zimplastics acknowledged its
indebtedness to him through the medium of a letter dated 12 July 2011.
Applicant, Mr Corbett sought the following order:
1.
Summary judgment in case number HC8359/11 is granted in favor of applicant and
against respondent in the sum of US$78 998-88, together with interest thereon
at 5% per annum calculated from 28 February2011 to the date of payment.
2.
Respondent shall pay collection commission on the said sum in terms of the
law-society Tariff.
3.
Respondent shall pay costs of suit on the scale of legal practitioner client.
Zimplastics opposed the application for summary judgment in
its opposing papers dated 25 November 2011. The basis of the opposition was
that the loans allegedly advanced to it were never approved by its board of
directors, that Mr Corbett was the Zimplastics' managing director during the
relevant period and had an interest in the respondent in that capacity and
therefore could not have advanced such monies to Zimplastics without
authorization. Zimplastics averred that, as a public company listed on the
Zimbabwe Stock Exchange at the time, it is improbable that Mr Corbett loaned
monies to his employer, rather, the evidence shows that Mr Corbett was ruining
a parallel business which he ran in competition with his employer. Zimplastics
denied acknowledging indebtedness to Mr Corbett as claimed. Zimplastics averred
that there are material disputes of facts as to whether the loans were
sanctioned by the board of directors. According to Zimplastics, this
constitutes a bona fide defense because if the monies were advanced illegally,
respondent would not be liable to repay.
Mr Corbett countered Zimplastics's averments by stating that the loans were
approved by a Mr. C. R. Maradza in his capacity as Finance Manager of
Zimplastics. He denied that the board of directors were ignorant of the loan,
and stated that the board of directors was constantly changing, but Mr. Maradza
remained with Zimplastics for a long time. Mr Corbett denied that there were
any material disputes of fact which rendered this matter incapable of
resolution on the papers filed of record. He attached minutes of board meetings
to show that the board was aware of the fact that he was loaning the respondent
monies.
The Summary judgment procedure is set out in Order 10 Rule 64 of
the High Court Rules 1971 as follows:
“(1) Where the defendant has entered appearance to a
summons, the plaintiff may, at any time before a pretrial conference is held,
make a court application in terms of this rule for the court to enter summary
judgment for what is claimed in the summons and costs.
(2) A court application in terms of subrule (1)
shall be supported by an affidavit made by the plaintiff or by any other person
who can swear positively to the facts set out therein, verifying the cause of
action and the amount claimed, if any, and stating that in his belief there is
no bona fide defense to the action.”
The purpose of the relief of summary judgment is to enable
a Plaintiff with a clear case to obtain swift enforcement of its claim against
a Defendant who has no real defense against the claim. See Oak Holdings vChiadzwa
SC136/85.
Plaintiff seeking summary judgment must bring itself
squarely within the ambit of rule 64. See Shingadia vShingadia
1966 RLR 285 (G) at 288I-289A, and Bank of Credit & Commerce Zimbabwe Ltd vJani
Investments (Pvt) Ltd 1983 (2) ZLR 317 (H) at 320F. In other words,
Plaintiffs claim must be clear and unassailable as it is set out in the summons
and declaration, and verified in the founding affidavit.
"Accordingly, summary judgment should not be granted
when any real difficulty as to matters of law arises, but it has been held
that, however difficult the point of law is, once the court is satisfied that
it is really unarguable, judgment will be granted."Shingadia v Shingadia
1966 RLR 285 at 288A-B; 1966 (3) SA 24 (R) at 25-26:
This passage was cited with approval in Rheeder vSpence
1977 (2) RLR 263 at 266G; 1978 (1) SA 1041 (R) at 1043. In Chrismar (Pvt) Ltd vStutchbury
1973 (1) RLR 277 (GD), BECK J said at 279D: E
"...it is well established that it is only when all
the proposed defenses to the plaintiff's claim are clearly unarguable, both in
fact and in law that this drastic relief will be afforded to a
plaintiff"
The Plaintiff's claim in the pleadings (summons,
declaration, founding affidavit) must be unanswerable. See Central Africa
Building society vEphison Simbarashe Ndahwi HH18/10. The founding
affidavit must confirm the facts of the case and the confirm the cause of
action and contain an averment that the respondent has no bona fide
defense and had entered appearance to defend solely for purposes of delaying
the finalization of the matter. See Chindori-Chininga v
National council Negro women 2001 (2) ZLR 305, Beresford Land Plan (Pvt)
Ltd v Urquahart 1975 (3) SA 615.
Respondent must establish that it has a good prima facie
defense.See Hales vDoverick Investment 9Pvt) Ltd 1998(2) ZLR 235. Respondent
must not be content with vague generalities and conclusory allegations. See District
Bank limited vHoosain and Others 1984 (4) SA544. InMbayiwa vEastern
Highlands Motel SC 139-86 the court stated that:
“While the Defendant need not deal exhaustively with the
facts and the evidence relied on to substantiate them, he must at least
disclose his defense with sufficient clarity and completeness to enable the
court to decide a bona fide defense”.
In Jena vNechipote 1986 ZLR 29(SC) the
court stated that:
“at p 30 D-E:
``All the defendant has to establish in order to succeed in
having an application for summary judgment dismissed is that `there is a mere
possibility of success'; `he has a plausible case'; there is a real possibility
that an injustice may be done if summary judgment is granted”.
The question that the court must answer is this, is the
claim by Mr. Corbett, for payment of USD$78 998-88 clear, unambiguous and
watertight, both in fact and in law, and do any of the defenses raised by
Zimplastics, denying liability have sufficient merit both in fact and in
law, to defeat the claim? Put differently, did applicant loan and advance the
sum of US$78 998-88 to the respondent, and if so, did it do so with the
approval of the board of directors of the respondent, entitling it to
repayment?
Mr Corbett, the applicant attached a letter dated 12 July
2011 to the founding affidavit of the application for summary judgment. The
letter is addressed to him, by the respondent Zimplastics and titled “Letter of
final demand for outstanding payments”. Item number 2 of the letter,
titled”Zimplastics-Corbett Family $77 859.53” reads as follows:
“According to our ledger the figure stated is $78 998-88.
Please find attached our statement loan schedule. Can you please reconcile so
as we deal with the same figures on both sides. However the chairman of ZECO
Holdings Board of directors Mr. P. Chiyangwa informed me that he will handle
the outstanding loan. He insisted you contact him directly”.
The contents of the letter are clear, and unambiguous.
Applicant demanded payment of $77 859-53 on 21 June 2011. Respondent pointed
out in the letter of 12 July 2011, that according to its books, the loan amount
was actually $78 998-88. This confirms the fact and the cause of action in
regards to the amount due and payable. It is evidence attached to the founding
affidavit which verifies the cause of action as stipulated in Cabs v
Ndahwi, Chindori Chininga v National Council Negro Women, Beresford vUrqhart
supra. In regards to the respondent's defense that the laon was advanced
without the prior approval of the respondent's board of directors, in my view
there is no possibility of its success, even a slight one. See Jena vNechipote
supra.
In fact in my view a miscarriage of justice will
ensue if summary judgment is not granted. The minutes of respondent's board
meeting of 22 September 2010, well before Mr. P. Chiyangwa joined the board of
diresctors of Zimplastics as chairman and pledged that he would settle the debt
directly, Wekare and Savanhu, non executive chairman and vice chairman,
ratified the loan agreement. At page 7 of those minutes a record of the
discussion pertaining to the loan clarifies issues somewhat. The chairman
states that the loan had not been approved by the board. Mr Corbett agrees, and
to recognize and mitigate the impropriety of that, he offers to forgo his claim
for interest in the sum of $36 000-00, which would leave the capital loan mount
at around $107 00-00. The last line of paragraph 10 on page 7 of the minutes
reads:
“Mr. T Savanhu urged Zimplastics management to clear the
loan as soon as possible”.
This was a direction by the board chairman after the loan
had been negotiated down to $107 600-00 in recognition of the fact that the
monies had been advanced without the approval of previous boards of directors.
Clearly the lack of board approval was subsequently ratified by the decision of
the board of directors to accept a reduction of the interest component in that
board meeting of 22 September 2010. Zimplastics then accepted liability for the
balance, and its chairman directed that the loan be repaid expeditiously. To
argue, now, in 2013, that the loan was unsanctioned and illegal is simply not
correct, as a matter of fact, or of law. By 12 July 2012, Zimplastics' own
books showed that the loan amount was $78 998.88.
The court is satisfied that the applicant's claim for
summary judgment is clear and unassailable, and that, none of the defenses
raised by respondent, of fact or law, have any possibility of succeeding and
defeating the applicant's claim. Accordingly it is ordered that: Firstly:
1.
The application for condonation of late filing of heads of argument and
upliftment of bar be and is hereby granted.
2.
The bar operating against Zimplastics (Pvt) Ltd be and is hereby uplifted.
3.
A copy of the heads of argument attached to the application for condonation of
late filing of heads of argument be and is hereby placed before the court as
forming part of the record under case number HC11294/11.
4.
Costs be in the cause.
Secondly,
5.
Summary judgment in case number HC8359/11 is granted in favor of applicant and
against respondent in the sum of US$78 998-88, together with interest thereon
at 5% per annum calculated from 28 February2011 to the date of payment.
6.
Respondent shall pay costs of suit.
Warara & Associates,
applicant's legal practitioners
Sinyoro
& Partners, respondent's legal practitioners
