NDOU J: The
applicant seeks a summary judgment against the respondents. The background facts are the following. Under case number HC 703/05 the applicant
issued summons against the respondents in which he claimed against the
respondents, jointly and severally, payment in a sum of US$12 876,00 or its
local currency equivalent.
The respondents filed a plea and in
the plea they admit that they owe the applicant US$12 876,00. They, contend, however, that they are excused
from paying the same because the applicant has not discharged his obligation to
pay staff up to date when the respondents took over business. In terms of the agreement of sale between the
parties, it was provided that the applicant would pay the employees all sums
due to them by way of leave and/or pension up to the date the respondents took
over the business. The respondents
contend that they are excused from paying the applicant the sum as he has
claimed because the applicant has not paid the employees. The respondents' plea is essentially that the
applicant is in breach of the contract that he seeks to have specifically
enforced. So the respondents have in
case number HC 703/05, confessed and avoided the issue of liability. It is common cause that the applicant did
not, in fact, pay off the workers. It is,
further, common cause that the respondents have been taken before a Labour
Officer and ordered to "re-employ" the workers or re-instate them or pay
several months salary to them. This
decision by the Labour Officer has been appealed to the Labour Court. At the time of this hearing, the appeal was
still to be decided. It should be
pointed out that the respondents have issued process under case number HC
160/05, issued before the main matter in this case, being case number HC
703/05. The relief sought in case number
160/05 is that the current applicant be ordered to pay the workers off, as he
is contracted to. It is common cause
that case number HC 160/05 has not been finalised. The respondents have, in fact, prayed that
decision of the issues in case number HC 704/05 be stayed until the issues in
HC 160/05 be resolved. This is stated in
the respondents' plea in HC 703/05. The
net effect of the above is that there are two cases before this court which
both raise triable issues. These issues
are, in HC 160/05, whether the applicant is obliged to pay off the workers and
in HC 703/05, whether notwithstanding the fact that the applicant has not
fulfilled his obligations under the contract, the applicant is entitled to
payment of the full purchase price. It
is trite law that where triable issues arise, the applicant is not entitled to
summary judgment - Hughes v Lotriet 1985(2) ZLR 179 (HC) and Kodak
Ltd v Alpha Film Corp. Ltd [1930] 2 QB 340. Therefore, by its very
existence, case number HC 160/05 defeats summary judgment in the current
matter, in that it raised legitimate issues for trial, and also in that it is a counter-claim, which has been
accepted as constituting a valid defence to defeat summary judgment, even if it
is for less than the amount of the main action - Wilson v Hoffman
& Anor 1974 (2) SA 44 (R) ; Scottfin v Hewitt & Ors
1999(2) ZLR 65 at 69, Faust Products (Pvt) Ltd v Continental Fashion
(Pvt) Ltd 1987(1) ZLR 45(HC) and Mhlanga v Green SC-92-94.
The respondents have proffered a
legal defence to the applicant's claim.
The respondents are pleading the exceptio non adimpleti contractus,
averring that the applicant has come to court to enforce a contract which he
himself has been in breach of. It is
trite that the exceptio non adimpleti
contractus is available as a defence to a party from whom specific
performance is demanded by the other contracting party, whose reciprocal
performance has not been rendered - Orsner v Len 1992(3) SA
626(A) and Anastropoulous v Gelderblom 1970(2) SA 631(N).
Further, the respondents have raised
a procedural issue with this application.
The founding affidavit does not verify the cause of action. Order 10 Rule 64(2) of the Rules of the High
Court, 1971, require that an applicant for summary judgment must (a) verify the
cause of action, and (b) state that in the belief of the deponent, there is no bona
fide to the main action. The
founding affidavit is deficient in this material respect, and the application
is, therefore, defective - Scropton Trading (Pvt) Ltd v Khumalo
1998(2) ZLR 313 (S); C Stenslude & Co (Pvt) Ltd v Benwell
Engineers Ltd 1988(2) 327(H) and Jena v Nechipota 1986(1) ZLR
29 (S).
From the foregoing the application
for summary judgment must fail.
Accordingly, the application is dismissed with costs.
Majoko & Majoko, applicant's legal practitioners
Ben Baron & Partners, respondents' legal practitioners