On
16 April 2015, the applicant issued out summons from this court
seeking payment of $18,000= being unpaid money for security services
rendered to the respondent in terms of two separate agreements
entered into by the parties. These agreements are marked as Annexures
'C' and 'D' to the application for summary judgment.
Also
annexed to that application is a hand-written letter by the
respondent's representative indicating its commitment to settle the
debt of $18,000=.
In
its summons, the applicant made an uncontroverted averment that the
respondent had made a commitment to settle the debt but had failed to
do so.
Upon
being served with summons commencing action, the respondent entered
appearance to defend the action on 8 June 2015 and immediately filed
a request for further particulars on the same date. The request for
further particulars sought to dwell on issues which the respondent
was fully aware of.
The
applicant's swift response was to file an application for summary
judgment alleging that the respondent was employing the usual tactics
to waste time knowing fully well that it had no defence to offer to
the applicant's claim.
In
its notice of opposition to the application for summary judgment, the
respondent has basically raised two issues, viz,
that Annexure 'C', one of the contracts giving rise to this
action, was signed under duress, and, secondly, that at the time the
applicant's security officers were guarding the respondent's
property, certain goods were stolen whose value exceeds the
applicant's claim. The argument was that the defence of set-off,
and, possibly, a counter-claim was available to the respondent and
therefore summary judgment application was not a sealed application
in this matter.
The
law, as regards the requirements for summary judgment, is settled.
The
applicant must demonstrate that it has an unassailable case and that
the respondent has no bona
fide
defence to the applicant's case and that the notice of intention to
defend the action is motivated by the respondent's desire to
obstruct the smooth conclusion of the applicant's case. See Bank
of Credit and Commerce Zimbabwe Ltd v Jani Investments (Pvt) Ltd 1983
(2) ZLR 317.
MACDONALD
ACJ, in Beresford
Land Plan (Pvt) Ltd v Urquhart 1975
(1) RLR 260 (AD); 1975 (3) SA 619,
succinctly
puts it when he remarked that “the broad effect that summary
judgment procedure was the principle means by which unscrupulous
litigants seeking only to delay a just claim by entering appearance
to defend are thwarted and that it is of the greatest importance that
the efficacy of the procedure should not be impaired by technical
formalism.”
I
now deal with the issues raised by the parties in this case.
I
find the issue of duress being raised by the respondent in this case
to be unsustainable for the following reasons. The contract which the
respondent says it signed under duress was signed on 19th
December 2013. It is inconceivable, in my view, that if there was any
duress, the deponent to the respondent would have signed an
acknowledgement of liability loaded with terms of extinguishing the
debt on 17 December 2014 - almost a year later. If at all there was
duress, there would have been no need for the respondent's
representative to acknowledge such tainted liability. The alleged
duress is clearly being raised to cloud issues here.
The
potential counter-claim arising out of the respondent's claim of
its allegedly stolen goods at the time the applicant's security
guards were guarding its premises was brought to the applicant's
attention long before the application for summary judgment was filed
in this court. In fact, on 26 June 2013, the respondent's secretary
wrote to the applicant demanding compensation for its allegedly
stolen goods valued at $24,369=. The applicant acknowledged the
possibility of such theft having occurred but alleged its insurers
were still investigating that issue.
Under
such circumstances, it is extremely difficult for the applicant's
claim to be determined at the stage of summary judgment. The
respondent appears to have a bona
fide
defence to the applicant's claim.
The
application for summary judgment is dismissed with costs being costs
in the main cause.
