MATHONSI
J:
The
respondent was served with the applicant's heads of argument on 23
May 2011. In terms of r238(2a) of the High Court Rules, as the
respondent is represented by a legal practitioner, the said legal
practitioner was required to file heads of argument not more than ten
days after receiving the applicant's heads of argument.
That
provision is peremptory and in terms of subrule (2b) of r238 a
respondent who fails to file heads of argument within the prescribed
period of time is automatically barred and the court is entitled to
deal with the matter on the merits or direct that it be set down
unopposed.
Mr
Chavi
appearing
on behalf of the respondent conceded that the respondent's heads
were not filed on time.
In
fact they were only filed on 16 January 2012 well out of time. No
application for condonation was made and as such the respondent has
no right of audience.
I
intend therefore to deal with the matter on the merits.
I
have studiously gone through the papers filed of record and I am of
the view that a good case has been made for an order of summary
judgment.
In
order to defeat an application for summary judgment the respondent is
required to satisfy the court that he has a good prima
facie
defence. He must allege facts that if proved at the trial would
entitle him to succeed at the trial.
I
am of the view that the respondent has failed to do so. What he has
done is to dispute the purchase price of the maize that he delivered
to the applicant when in fact the price was agreed upon between the
parties and he appended his signature on the various documents
signifying delivery.
It
remains for me to deal with the penalty stipulation of 10% monthly
interest.
I
do not agree with Ms Taran
that it does not violate the provisions of the Contractual Penalties
Act [Cap
804].
To
me 10% interest a month is excessive.
In
terms of s4(2) as read with s4(4) of the Act, if it appears to a
court that the penalty is out of proportion to any prejudice suffered
by the creditor as a result of the breach, the court may reduce the
penalty and grant what is fair and just in the circumstances.
Without
going into the arithmetics of the debt I am of the view that the
computation made by the applicant to justify the penalty is not
convincing as it exaggerates the prejudice suffered. It is best
practice, where interest is to be reckoned on a monthly basis, to
place it at about 3 to 5%.
I
am of the view that in casu
it should be pegged at 5% per month.
In
the result, I make the following order that:
1.
The application for summary judgment is hereby granted.
2.
The respondent shall pay the applicant the sum of US$27,224-19.
3.
The respondent shall pay the applicant interest on the aforesaid
amount at the rate of 5% per annum from 2 December 2010 until date of
full and final payment.
4.
The respondent shall pay the applicant a penalty amount on both the
capital and the interest amount aforesaid on a compounded basis at
the rate of 5% per month from 12 January 2011 until date of full and
final payment.
5.
The respondent shall pay costs of suit on a legal practitioner and
client scale.
Scanlen
Holderness,
applicant's legal practitioners
I
Murambasvina Legal Practitioners,
respondent's legal practitioners
