This is a court application for
summary judgment.
The first respondent is a subsidiary
of the second respondent. In January 2013, the plaintiff and the first
defendant entered into an agreement wherein the former hired out its excavator,
Komatsu Grader, and Tipper trucks to the latter on agreed
rates. Consequent upon the agreement, the plaintiff supplied its machinery
to the first defendant for the period January 2013 to May 2013. Payment
was due within seven days of each invoice being issued. The first
defendant neglected payment and this caused the plaintiff to issue summons
against both defendants jointly and severally, the one paying the other to be
absolved, claiming a total sum of $130,290=. The relevant invoices marked
annexures “A” to “H” were attached to the plaintiff's declaration.
The defendants contested the suit.
In their plea, while admitting that
the machinery was indeed supplied, they disputed that the invoices reflect the
correct work and amount and also that the letter dated 20 May 2013 does
constitute “a proper a (sic)
legal undertaking by the second defendant to bind itself jointly and severally
as a co-principal debtor.”
Following this plea, the plaintiff
launched this application for summary judgment.
There is a plethora of case law
authorities dealing with this subject of summary judgment. In Roscoe v Stewart 1937 CPD 138 it was held that the procedure of
summary judgment was intended to eliminate bogus defences and defences which
are obviously bad in law and have no substance or merit.
Summary judgment was, in the case of
Shingadia v Shingadia 1966 (3) SA 24 (R),
described as “an extraordinary, stringent and drastic remedy in that it closes
the door in final fashion to the defendant and permits a judgment to be given
without a trial.”
And, in Hughes v Lotriet 1985
(2) ZLR 179 (H) it was stated that though the applicant's claim need not be
unanswerable his claim must be unimpeachable.
The locus classicus on this procedure is Maharaj v Barclays
National Bank Ltd 1976 (1) SA 418 (AD)…, where CORBETT JA said:
“Accordingly, one of the ways in
which a defendant may successfully oppose a claim for summary judgment is by
satisfying the court, by affidavit, that he has a bona fide defence to the claim. Where the defence is based
upon facts, in the sense that material alleged by the plaintiff in his summons
or combined summons, are disputed or new facts are alleged constituting a
defence, the court does not attempt to decide these issues or to determine
whether or not there is a balance of probabilities in favour of one party or the
other. All that the court enquires into is:
(a) Whether the defendant has
'fully' disclosed the nature and grounds of his defence and the material facts
upon which it is founded; and
(b) Whether on the facts so
disclosed the defendant appears to have, as to either the whole or part of the
claim, a defence which is bona fide
and good in law.”
Simply put, in the instant case, has
the applicant/plaintiff shown to the satisfaction of the court that it has a
clear case against the respondents/defendants which the latter cannot possibly
answer?
The plaintiff's annexures “A” - “G”
are very detailed.
They are all directed to the first
defendant for the attention of Mr P. Muzamba. Each invoice describes the
number of days a particular product/equipment was hired out to do work at the second
defendant's Victoria Falls and or Binga road construction sites with the weeks
hired out being specified, the unit price and the total amount clocked, and
less part payments made, where applicable. Each invoice also indicates at
the bottom that it was verified and sent for payment by the first defendant's Project
Manager, M. Muchetu, who appended his signature thereon. Annexure “H” is the
statement of account encompassing all the invoices totaling $130,290= addressed
to the first defendant for the attention of Mrs Miriam Sibanda.
Annexure “I” is written on a
document bearing the second defendant's letterhead addressed to the plaintiff
by a bookkeeper named G. Mukobvu dated 20 May 2013. It reads:
“RE: ARREARS PAYMENT
I refer to the above subject.
We acknowledge our arrears but due
to our cash flow challenges we would like to advise that it will be settled
soon. Please refer to the attached letter to confirm our anticipation. We
pray that you find our communication in order.”
Of note here is that that letter was
written on 20 May 2013, some seven days following the date of the last invoice
for $30,800= dated 13 May 2013. Before that, there have been some e-mail
correspondence between the parties. Annexure “J” is an e-mail to the
following effect:
“Subject: Re: Amt in arrears
From: gmukobvu@twalumba.co.zw
Date: Tue, April 30, 2013 2:17pm
To: “peppergrinder01@yahoo.com
Cc: twalumbaholdings@gmail.com
Hie,
I acknowledge receipt of your
correspondence with reference to the above subject.
It is in this regard that we are
busy working out a payment plan so as to settle our arrears.
The proposal will be sent to you
soon.
We are, however, grateful to you for
the service you rendered the group and we hope our proposal will meet your
optimum consideration.”
Annexure “K” is another email
saying:
“From:
miriam.sibanda<Miriam.sibanda@yahoo.co.uk
To: peppergrinder01@yahoo.com
Cc: gmukobvu@twalumba.co.zw
Sent: Wednesday, May 8, 2013 11:10
am
Subject: Payment Plan by Twalumba
Civils to Peppergrinder
Dear Mr Utete
Sincere apologies for the
tardiness. I had assigned our bookkeeping, Mr Mukobvu, to e-mail you our
proposed payment plan. Nevertheless, we should pay you $5,000= (five thousand
United States dollars) by next week when a payment we are expecting from ZINARA
comes through. Thereafter, I should be able to pay at least a similar
amount or more depending on the turnaround time of our claims per month.
I will be e-mailing the deposit
slips to you with each payment.
Thank you for your patience. I
will personally ensure that the payment is settled in the shortest possible
time.”
On May 14, 2013, the plaintiff had
e-mailed Miriam Sibanda, copying the e-mail to Mukobvu, saying:
“…,. Please find attached, copies of
our March and April invoices for the hired equipment as per my telephonic
conversation with Mr Mukobvu. The hard copies were given to your Project
Manager, Mr Muchetu. Please be reminded of the payment you promised us
mid- this week. I trust it will come through before Friday.”
Thereafter, on 5 June, 2013 Mukobvu
sent this email to the plaintiff:
“Hie Mr Utete
We are working flood (sic) out to
sort out your payment by Friday this week. Please bear with us as we are
anticipating payment. The ZINARA pple said that they want to inspect the
project first before processing payment. We are just anticipating.”
From the foregoing, I have no doubt,
whatsoever, in my mind that the plaintiff has shown that it has a clear case
against both defendants in the sum of $130,290=. Its claim is unanswerable
and it is for work that was done, as shown on the invoices annexures “A” -
“G”and also on annexure “H”. Annexures “A” –“G” show work that was done
and not to be done. The work done and the amounts charged for it were
signed for by Mr M. Muchetu who is the second defendant's Project Manager.
This person did not file any
affidavit disputing that the work reflected on the invoices alluded to supra as having been done was not
done, or was partly done, or averring that the amounts reflected thereon were quotations.
In their plea, the defendants never
stated that the amount owing is $45,040=. That amount was only broached
for the first time in the opposing affidavit.
In all the correspondence alluded to
above wherein the arrears were admitted owing, and payment plan proposed, there
was neither a denial of the amount of $130,290= nor a partial admission that
only $45,040= was owed. By 20 May 2013, all the invoices totaling $130,290=
had been compiled and transmitted to the defendants. They were therefore aware
that the arrears the plaintiff was talking about, and the arrears the
defendants were acknowledging owing, related to the $130,290=. It is
therefore an afterthought for the defendants to change goal posts only in the
notice of opposition to start alleging that the plaintiff's invoices were
quotations for work to be done or that only $45,040= was owing.
This cannot ever amount to a bona fide defence at all….,.
The defendants were supposed to not
only disclose the nature of the defence relied upon to resist the plaintiff's
claim but set out the material facts on which that defence is based in a manner
that is not inherently or seriously unconvincing. This they dismally
failed to do.
In the event, it is ordered that
summary judgment be and is hereby granted against the defendants jointly and
severally, the one paying the other to be absolved in the following terms:
a) Payment of $130,290= being
outstanding hire charges for the plaintiff's machinery;
b) Interest on the amount of $130,290=
at the rate of 5% per annum from the date of summons to date of full payment;
and
c) Costs of suit.
