This
is an application for summary judgment.
On
6 October 2009, the plaintiff issued summons against the defendants
claiming the sum of US$4,568=85 in respect of certain goods allegedly
sold and delivered at the first defendant's special instance.
In
its declaration, the plaintiff alleged that during the period 22
April to 20 May 2009, the plaintiff supplied stationery to the first
defendant valued at $9,932=85. On 20 May 2009, the second defendant
bound himself as co-principal debtor and surety for the debt due by
the first defendant, which, at the date of the suretyship, stood at
$8,700=. It was further alleged that the first defendant made several
payments to the plaintiff leaving the balance claimed in the summons.
On
13 October 2009, the defendants filed an entry of appearance to
defend, prompting the plaintiff to file this application for summary
judgment.
The
application was opposed.
In
opposing the application, the second respondent, who deposed to the
affidavit on behalf of both respondents, denied that the first
respondent had purchased the stationery from the plaintiff. He
averred that the first respondent received an order from its client
for the stationery, and it, in turn, sourced the stationery from the
plaintiff. When its client failed to pay for the stationery, mainly
chalk it would appear, the first respondent advised the plaintiff of
the fact. The plaintiff however refused to accept the chalk back. It
is further averred that an agreement was reached between the parties
in terms of which the first respondent would sell the chalk,
presumably to other of
its customers and remit periodic payments to the applicant. This the
first respondent had been doing prior to the issuing of summons.
At
the hearing of the application, the applicant applied for leave to
file an answering affidavit. In terms of the rules, the proper term
for this affidavit should be “supplementary affidavit” and not
answering affidavit. The name of the affidavit is to be derived from
the wording of Rule 67 of the High Court Rules 1971, which I refer to
below, which grants discretion to the court to allow a plaintiff to
supplement his founding affidavit. No answer is permissible in
summary judgment proceedings.
In
the affidavit, the plaintiff denied that it sold the stationery to
the first defendant on consignment. It maintained that it had sold
the stationery to the first respondent outrightly and further denied
the alleged arrangement between the parties to the effect that the
purchase price would be remitted to the applicant as and when the
first respondent was able to sell the stationery to its customers.
The
filing of a supplementary affidavit is restricted, in the discretion
of the court, to instances where a defence that was not anticipated
by the applicant is raised in the opposing affidavit. See Beresford
Land Plan (Pvt) Ltd v Urquhart
1975 (1) RLR 260 (G) and Omashah
v Karasa
1996 (1) ZLR 584 (H).
As
stated above, paragraph (c) to the proviso to Rule 67 of the High
Court Rules, 1971 grants power to the court to permit the plaintiff
to supplement his founding affidavit with a further affidavit dealing
with either matters raised by the defendant which the plaintiff could
not reasonably be expected to have dealt with in his first affidavit
or the question whether, at the time the application was instituted,
the plaintiff was or should have been aware of the defence.
Rule
67 provides as follows:
“No
evidence may be adduced by the plaintiff otherwise than by the
affidavit of which a copy was delivered with the notice, nor may
either party cross-examine any person who gives evidence viva voce or
by affidavit:
Provided
that the court may do one or more of the following —
(a)
Permit evidence to be led in respect of any reduction of the
plaintiff's claim;
(b)
Put to any person who gives oral evidence questions —
(i)
To elucidate what the defence is; or
(ii)
To determine whether, at the time the application was instituted, the
plaintiff was or should have been aware of the defence;
(c)
Permit the plaintiff to supplement his affidavit with a further
affidavit dealing with either or both of the following —
(i)
Any matter raised by the defendant which the plaintiff could not
reasonably be expected to have
dealt with in his first affidavit; or
(ii)
The question whether, at the time the application was instituted, the
plaintiff was or should have
been aware of the defence.”
In
casu,
I allowed the filing of the answering affidavit on the turn and
indicated that my reasons would follow. It is convenient that I now
set them out.
The
plaintiff's claim against the defendant is for the sum of $4,568=85
in respect of goods sold and delivered. Correspondence between the
parties, prior to the issuance of summons, which are attached to the
founding affidavit, indicated that the defendants had failed to
collect the purchase price from their customer and were in the
process of collecting the chalks back. The sale agreement between the
parties was not denied in any of this correspondence. Liability was
also not specifically or impliedly denied at this stage. The
logistical arrangement relating to the return of the chalk was
informed of the plaintiff - not as a defence to the claim. It was
simply by way of information with a request that the defendants be
granted two weeks to finalise (this arrangement).
In
my view, it was therefore not reasonably expected of the plaintiff to
deal with the issue of the return of the chalk in its founding
affidavit as such return was a mere logistical arrangement that the
defendants felt they had to attend to. It was not suggested as a
defence to the claim for the payment of the balance of the purchase
price.
In
opposing the application for summary judgment, the defendant used the
return of the chalk as a defence and the plaintiff needed to deal
with this unexpected alleged defence.
It
is on the basis of the above that I allowed the supplementary
affidavit, wrongly headed “Answering Affidavit”, to be filed.
The
test to be applied in summary judgment applications is clear and
settled on the authorities.
The
defendant must allege facts which, if he can succeed in establishing
them at the trial, would entitle him to succeed in his defence.
Obviously implied in this test, but oft overlooked by legal
practitioners, is that the defendant must raise a defence. His facts
must lead to and establish a defence that meets the claim squarely.
If the facts that he alleges, fascinating as they may be and which he
may very well be able to prove at the trial of the matter do not
amount to a defence at law, the defendant would not have discharged
the onus on him and summary judgement must be granted.
In
casu,
the defendants allege that after they had obtained the chalk from the
plaintiff, and having, in turn, delivered the chalk to their own
customer, they failed to get the customer to pay for the chalk. This
may very well be true and I have no doubt that the defendant may be
able to prove that this is what happened.
The
issue to be determined is whether this amounts or constitutes a
defence to the claim raised by the applicant for the balance of the
purchase price of the chalk.
The
general rule is that once the parties are in agreement over the merx
and the payment of the purchase price payable for the merx,
a valid contract of sale comes into being between the parties. The
contract them casts upon the seller the obligation to deliver the
merx
sold
and upon the purchaser, the obligation to pay the purchase price. To
defend a claim under an agreement of sale, then, the purchaser must
attack either the existence of the agreement itself or the fact that
the goods sold were not delivered to him.
The
defendants before me have denied that they purchased the chalk from
the plaintiff. Such denial is not only bare but is contradicted by
their further averments that they indeed received the chalk from the
plaintiff and that they have paid part of the purchase price to the
plaintiff. In the face of such an admission, the defence that there
was no agreement of sale between the parties in untenable and the
plaintiff must succeed.
The
plaintiff has generously interpreted the facts alleged by the
defendant in the opposing affidavit as raising a contract of
consignment. I say generously because the defendants have not so
alleged in their papers.
At
this stage, I believe that it is pertinent that I set out, in full,
the contents of what I regard as the operative part of the
defendants' opposing affidavit. In response to the averments
verifying the plaintiff's cause of action and the fact that the
defendants had entered appearance to defend solely for the purposes
of delay, the defendants had this to say in paragraph 4 of their
joint affidavit:
“This
is disputed. The applicant did not supply any stationery to the first
respondent. The brief facts are that:-
4.1
The first respondent obtained an order for chalks from its customer
Kingstones which it, in turn, sourced from the applicant.
4.2
After receiving the chalks, Kingstones failed to pay for them and
returned the chalks; the applicant was advised and the Applicant
refused to accept the chalks back.
4.3
An agreement was reached with the applicant in terms of which the
respondent would sell the chalk and remit payments to the applicant
as and when any quantity was sold.
4.4
The 1st
respondent has been selling the chalks and remitting the proceeds of
the sold quantities to the applicant.
4.5
Indeed, the Applicant's Annexure “A” confirms this
arrangement.”
As
was remarked by McNALLY JA in Mbayiwa
v Eastern Highlands Motel (Pvt) Ltd
SC139-86…,:
“…,
while the defendant need not deal exhaustively with the facts and the
evidence relied on to substantiate them, he must at least disclose
his defence and material facts upon which it is based with sufficient
clarity and completeness to enable the court to decide whether the
affidavit discloses a bona fide defence.”
I
find the contents of the defendants opposing affidavit contradictory,
confusing, and lacking the sufficient clarity and completeness that
McNALLY J A referred to.
Whilst
the defendants deny that the applicant delivered to them any chalk,
they proceed to concede that they sourced for chalk from the
applicant which somehow ended up with their customer. In this regard,
for instance, it is not clear whether the defendants are setting up
the defence of agency, in which case they would not be liable for the
purchase price of the chalk. The defendants do not clearly raise
agency as a defence and it would appear from their subsequent
averments that the relationship was not between the plaintiff and
Kingstones directly but that Kingstones was a customer of the
defendants only.
Similarly,
it is equally not clear whether the facts alleged by the defendants,
as detailed above, raise a contract of consignment.
I
do not think so.
I
do not read any allegation of a contract whereby the plaintiff, as
one trader, entrusted the chalk to the first defendant for the chalk
to be sold by the first defendant on behalf of the plaintiff.
The
opposing affidavit spells out, clearly in my view, that the
defendants obtained an order from their own customer for the chalk.
They then approached the plaintiff for the chalk. The plaintiff did
not seek the defendants out for them to sell its chalk on consignment
in which event the plaintiff would be obliged to accept back whatever
portion of the consignment remains unsold. Rather, the defendants
appear to me quite clear that it was only after their customer had
failed to pay for the chalk that they approached the plaintiff with
the news and sought to return the chalk to the plaintiff.
In
my view, the facts alleged by the defendant do not in themselves
constitute a defence. If it was the intention of the defendant to
deny liability for the purchase price of the chalk, and, instead to
allege that the customer who failed to pay for the chalk was actually
liable for the payment of the chalk directly to the plaintiff, on the
basis of either agency or consignment, such must have been alleged
clearly.
In
my view, it is not the function of the court to put words into the
defendant's mouth and thereby establish a possible defence on his
behalf when the defendant fails to do so in his opposing affidavit.
I
have also considered whether the alleged subsequent agreement between
the parties, that the defendants would proceed to sell the chalk and
remit periodic payments to the plaintiff, would constitute a defence
to a claim for the purchase price of the chalk. In this regard, I
have considered whether this subsequent arrangement, if proved, would
constitute a variation of the terms of the original agreement between
the parties.
It
would have assisted me greatly had this been pleaded or argued before
me.
Instead,
even the original agreement of sale is denied in the defendants'
papers. How then can I,
mero motu,
hold that the defendants are raising a possible defence to the
plaintiff's claim to the effect that the terms of the original
agreement were varied by a subsequent agreement in the circumstances?
The
onus resting on a defendant resisting summary judgment has been
described as amongst the lightest that the rules of procedure cast on
litigants. The defendant does not have to prove his defence. He must
merely set up facts, which, if he can prove at the trial, will
entitle him to succeed in his defence. The defence so set up must
however be plausible and bona fide.
In
casu,
I find the possible defences set up by the defendants not only to be
contradictory but also not plausible. They are inherently and
seriously unconvincing, giving rise to the inference that they were
raised solely for the purposes of delay. See Standard
Bank of SA Ltd v Pyanayiotts
2009 (3) SA 363 (W).
On
the basis of the foregoing, I find that the plaintiff's claim is
clearly unanswerable.
In
the result, I make the following order:
1.
Judgment is hereby entered for the plaintiff in the sum of $4,568=85.
2.
The defendants shall bear the costs of suit.
