MATANDA-MOYO J: This is an application for summary
judgement. The plaintiff issued summons against the defendant on 26 April 2012
for the payment of $94 465-00, for maize allegedly supplied at the instance of
the defendant. In its declaration, plaintiff alleged that defendant and a
Zambia company by the name Linking Africa entered into an agreement whereby
Linking Africa would supply white maize to the defendant at a price of $210-00
per metric tonne. Linking Africa initially supplied defendant with 402 metric
tonnes of white maize at a price of $84 420-00. Defendant paid a total of $81
935-33 leaving a balance of $2 484-67.
Linking Africa made a further supply of 438 metric tonnes of white maize valued
at $91 980-00. No payment has been made to date for that consignment. On or
about 31 December 2010 Linking Africa ceded or assigned its rights to the
agreement with defendant to the plaintiff. Plaintiff then issued summons
against defendant. Defendant entered an appearance to defend and subsequently
filed its plea on 31 August 2012 prompting plaintiff to file for summary
judgement.
Defendant opposed the application for summary judgement. Defendant denied
having received the second consignment of 438 tonnes. Defendant alleged it
received 150 tonnes. Of the 150 tonnes maize valued at $9 660-00 was rotten.
Defendant alleges he paid $1 515-33 for that consignment leaving a balance of
$20 325-00. Defendant does not oppose summary judgement being granted against
it in the sum of $20 325-00. Defendant alleges to have paid the full amount for
the first consignment.
For applicant to succeed in an application of this nature, he must show that he
has a clear and definitive claim against the respondent. Applicant must show the
defendant has no valid defence to his claim. Once plaintiff has discharged that
onus, the onus shifts to the defendant to show that he has a bona fide
defence to the claim.
However the procedure for summary judgement is clear. Applicant files his
affidavit, respondent files its opposing affidavits. Once that is done no
further supplementary affidavits can be filed without leave of court. In total
disregard of the rules applicant herein filed an answering affidavit. There is
no room for filing an answering affidavit in an application for summary
judgement. Rule 67 (c) of the High Court Rules 1971 is instructive on this
point. It provides,
“No evidence may be adduced by the plaintiff otherwise than
by the affidavit of which a copy was delivered with the notice, ------------
provided that the court may do one or more of the following-
a) .
b) .
(i)
(ii)
c) Permit the plaintiff
to supplement his affidavit with a further or both of the following:-
(i)
Any matter raised by the defendant which the plaintiff could not reasonably be
expected to have dealt with on his first affidavit; and
(ii)
The question whether, at the time the application was instituted. The plaintiff
was or should have been aware of the defence.”
Applicant after receiving respondent's opposing affidavit
proceeded to file an answering affidavit. It is clear applicant was treating an
application for summary judgement as any other normal application. It was only
after reading the objection by the respondent that the applicant as an
afterthought decided to make an oral application for permission to file a
further affidavit. At the time of filing, such answering affidavit was not
accompanied by an application for leave to file that affidavit. The affidavit
was filed without leave of court in breach of r 67(c) above.
The applicant did not explain why he failed to file an
affidavit in support of his application to file a further affidavit. In coming
to my conclusion, I have considered that summary judgement results in a final
judgement against a party without affording that party a right to be heard at
trial. For this reason alone the courts must ensure compliance with the rules.
The defendant must not be taken by surprise at the date of hearing. The
defendant herein came to court ready to raise a preliminary point to exclude
plaintiff's answering affidavit. Defendant was taken by surprise when the
plaintiff indicated he intended to make an oral application for the affidavit
to be admitted. I fully subscribe to the words of STYDOM JP (as he then
was) in the case of Kelnic Construction (Pvt) Ltd v Cadilu Fishing
(Pvt) Ltd 1988 NR 198 at p 201 c-f that;
“There can be no doubt that summary judgement is an extra
ordinary remedy, which does result in a final judgement against a party without
affording the party the opportunity to be heard at trial. For this reason
courts have required strict compliance with the rules and only granted summary
judgements in instance where the applicant's claim is unanswerable.”
On the other hand a court has generally a “discretion which is inherent to the
just performance of its decision-reaching process, to grant that relief which
is necessary to enable a party to make full representation of his true case.
Amplification and rectification should be equally accessible in summary
judgement proceedings.” See Juntgen T/A Paul Juntgen Real Estate v
Nottbusch 1989 (4) SA 490 (w).
However the courts should exercise such discretion judiciously. Applicant in an
application to file further affidavit must explain why such evidence was not
filed when he filed his initial affidavit. Applicant submitted that defendant
raised new issues in his opposition which applicant had not contemplated at the
time of filing his initial affidavit. I have perused the 'answering affidavit'
and I have come to the conclusion that indeed it raises pertinent issues raised
by defendant in his opposition. Plaintiff cannot be said to have had such
information when he filed his summary judgement application. It is clear that
an injustice would be caused if I do not give plaintiff leave to supplement his
affidavit in response to Sindisiwe's issue. For the first time in its
opposition respondent made the allegation that it paid $4 000-00 to one
Sindisiwe Ndlovu. It became necessary for the plaintiff to supplement its
affidavit to deal with that issue. I have thus condoned plaintiff's filing of
the affidavit as it relates to payment of $4 000-00 only without leave of court
and admit such part of the affidavit. However should applicant win its case it
is not entitled to costs for that application.
The other contents and attachments are not admitted as applicant had such
information at the time of filing the application.
For this application to succeed applicant must show
that he has a good indefensible claim against the respondent. He must show that
defendant opposed the claim merely to delay payment. See Timda Truck Parts
(Pvt) Ltd v Autolite Distributors (Pvt) Ltd 1996 (1) ZLR 244 HC. Defendant
acknowledges receiving the first consignment. Defendant averred that the
balance was paid to Sindisiwe Ndlovu. Defendant alleged it paid $4000-00 and
defendant did not explain why it would pay $ 400-00 when only $2 484-67 was
outstanding. I admitted the affidavit of Sindisiwe Ndlovu so that this court
would deal fairly with that point. Sindisiwe denies receiving $4000-00 from the
defendant. Defendant has no bona fide defence against the plaintiff in
relation to the balance outstanding on the first consignment. Applicant is
entitled to summary judgement of that amount.
On the second consignment plaintiff alleged that he
delivered to defendant 438 tonnes of white maize valued at $91 980-00. No proof
of delivery has been attached to the application despite plaintiff having
received defendant's plea that it only received 150 tonnes of maize. See para 7
of defendant's plea;
“7.
------------- Linking Africa delivered 150 tonnes of maize only. The plaintiff
is challenged to produce proof of delivery which he has refused to furnish the
defendant with-------.
8.
the 150 tonnes delivered were not from Linking Africa hence were of poor
quality and some tonnes were rotten.-------------”
In his application for summary judgement plaintiff failed
to show that he has an unanswerable claim against the defendant. Plaintiff
attempted to do so via the answering affidavit which part I have ruled to be
improperly before me. Defendant has shown that it has a bona fide defence
against the plaintiff on the second consignment. Defendant referred me to the
case of Chrisnar (Pvt) Ltd v Statchbery 1973 (1) ZLR 277 GD where BECK
J said at 297 D,
“------ it is well established that it is only when all the
proposed defences to the plaintiff's claim are clearly measurable, both in fact
and in law, that this drastic relief will be afforded to a plaintiff.”
I am satisfied that the defendant has raised material facts which if proved
disclose a bond fide defence. See Standard Bank of SA Ltd v
Panagiotic 2009 (3) SA 363, Mahsaj v Barclays National Bank
Ltd 1976 (1) SA 418 (A) and Stationery Box (Pvt) Ltd v Natcon
(Pvt) Ltd and Anor 2010 (1) ZLR 227(H).
However defendant acknowledges owing $20 325-00 for the second consignment and
I see no reason not to enter judgement for that amount at this stage.
In the result
summary judgement is entered in favour of the applicant in the following;
1) That respondent be and is
hereby ordered to pay to the applicant the balance of $2 484-64 for the first
consignment.
2) That respondent pays to
the applicant the sum of $20 325-00, being the admitted amount for the second
consignment.
3) That respondent pays
interest at the rate of 5% from date of demand to date of payment.
4) That the applicant
proceeds to trial on the disputed amounts.
5) That each party pays its
own costs of suit.
Dube, Manikai and Hwacha,
applicant's legal practitioners
Magwaliba
and Kwirira, respondent's legal practitioners
