On
16 December 2013, the applicant, an incorporation engaged in civil
construction business, instituted summons action against the
respondent, another incorporation in the same trade, for payment of
the sum of $106,640= due in terms of a verbal agreement entered into
in 2011 for civil construction material supplied and road resealing
services rendered.
The
respondent entered appearance to defend, but, believing that
appearance had been entered for dilatory purposes, the applicant
filed this summary judgment application verifying the cause of
action.
The
applicant relies on three (3) letters penned by the respondent on 25
September 2012, 22 November 2012 and 17 January 2013 and yet another
written on its behalf by its legal practitioners, Messrs Mundia and
Mudhara, on 15 July 2013 which it says constitute an unqualified
acknowledgment of indebtedness as would suggest that the respondent
cannot possibly mount any bona
fide
defence to the claim.
On
25 September 2012, the respondent's Group Chief Operating Officer,
M. Sibanda, wrote to the applicant on behalf of the respondent as
follows:
“RE
OUTSTANDING INVOICES: TWALUMBA CIVILS
Your
letter dated 25 September 2012 on the above subject refers.
The
contents are noted and correspond with our records. As stated in our
meeting, both Twalumba Civils and Aspired are committed to settling
the outstanding balance of $108,640=20. We would, as per your
request, propose a payment plan but given our experience with our
clients, payments are hardly ever made on time. Therefore, for us to
proffer a payment plan we will not be able to adhere to is futile. We
are however undertaking to make payment each time we are paid. Based
on the projects we are working on currently, we anticipate that we
can settle our debt by end of June 2013. We are however working
tirelessly to clear the balance before then. We trust you can find
our communication in order.”
Rocket
science is not required to comprehend that the respondent had
received a demand for payment of a specified figure from the
applicant in respect of “outstanding invoices.” That the
respondent acknowledged the amount claimed as owing is pretty obvious
as the contents of the demand corresponded with their records. It is
also apparent from the contents of the respondent's letter that the
applicant had requested a payment plan which the respondent said it
could not make giving reasons for such failure.
Here
is an acknowledgment of debt, complete with the amount acknowledged
and an “undertaking to make payment.”
For
counsel for the respondent to then say that the respondent was not
placed in
mora
when it even undertook to settle the debt by the end of June 2013 is
the height of desperation. The communication to settle the
outstanding balance was repeated by the respondent in a letter dated
22 November 2012 in which excuses for non-payment were made.
On
17 January 2013, the respondent, again through its Group Chief
Operating Officer, sent another letter to the applicant which states
in part:
“RE:
TWALUMBA HOLDINGS DEBT TO WILBERG
Compliments
of the new season. The above subject matter refers.
We
write to advise that we have made a deposit of $2,000=, as per copy
of attached deposit slip, towards liquidating our debt. This small
payment leaves the outstanding balance at $106,640=20 (the exact
amount claimed by the applicant). We could only pay this amount
because only one of our claims with the least amount due was paid.
Once we receive another payment we will also make another payment to
you.
We
trust you find our communication in order.”
Much
later, on 15 July 2013, the respondent had not liquidated the debt
but still found time to make excuses. Writing on its behalf, Messrs
Mundia and Mudhara were also coming up with another dimension for
non-payment – the elections. They stated:
“Our
client does not presently have assets to offer as security. As
indicated at the meeting, a clear payment plan will be proposed
immediately after the general elections. This is so because most of
the projects that our client is engaged in are now at a standstill.
We ask that you kindly bear with our client until after the elections
when the situation is expected to normalise.”
You
have to give it to the respondent, this kind of resourcefulness in
securing an extension of time to pay is of a very rare quality. It is
the stuff for legends indeed. As to what the general elections had do
with settlement of a debt, which, by the respondent's own
commitment made earlier, ought to have been cleared by the end of
June 2013, is one of those mysteries of life.
In
order to defend an application for summary judgement, the respondent
must disclose a defence and material facts upon which the defence is
based with sufficient clarity and completeness which will persuade
the court that if proved at the trial such facts will constitute a
defence to the merits: Hales
v Doverick Investments (Pvt) Ltd
1998
(2) ZLR 235 (H)…,.
Not
every defence raised will succeed in defeating a claim for summary
judgment. The defence raised must be bona
fide:
Kingstons
Ltd v L.D Ineson (Pvt) Ltd
2006 (1) ZLR 451 (S)…,.
The
respondent must not content itself with vague generalities and
conclusory
allegations not substantiated by solid facts: District
Bank Ltd vHoosain & Ors
1984
(4) SA 544 (C) 547 G-H; Mubaiwa
v Eastern Highlands Motel (Pvt) Ltd
SC139-86.
The
respondent in
casu,
having burnt its fingers badly on the argument that it was not placed
in
mora,
shifted ground (it was always standing on sinking sand), and sought
to argue that the original agreement was novated by a new one located
in the form of the letter it wrote on 17 January 2013 undertaking to
clear the debt by June 2013.
It
was argued that the letter is evidence of novation and counsel for
the respondent maintained that although the applicant did not respond
to the letter, its non-response constituted a tacit acceptance of the
new obligation.
Now,
this is trifling in the extreme.
The
foundations of such proposition are not only obscure in the extreme,
they are as remote from reality as Ninevah and Babylon is to us. A
simple definition of novation can be found in R.H. CHRISTIE, Business
Law in Zimbabwe,
ed 2, Juta
& Co Ltd…,
where the learned author states:
“Novation
means the replacing of an existing obligation by a new one, the
existing obligation being thereby discharged….,. Because novation
involves a waiver of existing rights, it follows that it will not be
presumed, and, as in Ballenden
v Salisbury City Council
1949 SR 269, 273 1949 (1) SA 240, 246, it must be strictly proved.”
I
agree with counsel for the applicant that there is simply no evidence
of novation presented by the respondent. It cannot get away with
presenting a defence that is needlessly bald, vague or sketchy as it
has done, meaning that it lacks bona
fides,
and, accordingly, cannot defeat a summary judgement
application….,.
In
the result, it is ordered that:-
1….,.
2.
Summary judgment be and is hereby entered for the applicant as
against the respondent in the sum of $106,640= together with interest
at the rate of 5% per annum from 25 September 2012 to date of payment
in full.
3.
The respondent shall bear the costs of suit.
