This
is a summary judgment application in which the applicant, the
municipal authority in charge of the City of Bulawayo, seeks payment
of the sum of $64,166=83 due to it by the respondent in respect of
Stand 15001 Donnington West, Bulawayo, for water, rates and other
levies.
In
HC2559/14, the applicant sued out a summons against the respondent
for payment of that sum. It averred that during the period extending
from November 2011 to September 2014, it had provided utility
services, including water, to the respondent in respect of its
property and submitted bills to the church which failed or neglected
to pay in full thereby accumulating arrears of $64,166=83.
The
respondent entered appearance to defend and requested an array of
further particulars.
Believing
that the respondent had not a
bona
fide
defence and that appearance had been entered for dilatory purposes,
the applicant filed this application for summary judgment.
In
the founding affidavit deposed to by its Chamber Secretary,
Sikhangele Zhou, the applicant stated that after sending a letter of
demand on 27 February 2014 to the respondent, it had responded by an
undated letter acknowledging indebtedness and making a payment plan.
For that reason, the respondent cannot possibly have a defence to the
claim once it breached its payment plan. As such, summary judgment is
well deserved.
The
acknowledgement of indebtedness written by three of the respondent's
officials including its secretary, Patrick Matika, who appeared
before me representing the respondent, reads in pertinent part:
“Re:
Request
for credit payment
Church
YaBaba Johane Wemasowe hereby request City Council to accept their
payment plan towards clearance of arrears which is as follows:
A.
$1,500= per month towards arrears.
B.
Rates and timeously (sic).
This
amount will be increased if resources permit. Please bear with us as
we try by all means to settle our arrears. The issue has been
extended to all branches scattered around to play their part. Once
again, the matter will be tabled at the church's synod to be held
soon. All efforts will be towards arrears clearance.”
When
the respondent's officials made that approach to the applicant they
were on bended knees. As to when, and, indeed, how that unqualified
admission of liability metamorphosed to something else as to inform
the appearance to defend and request for particulars filed is not
clear.
Samuel
Muchuchu, its Chairman, who deposed to the opposing affidavit, did
not say. He was only happy to deny that the respondent neglected to
pay its debt when the evidence pointed to the contrary.
At
the same time the respondent “acknowledged being in arrears” but
challenged the applicant on the amount being claimed and demanded
that the applicant commissions an audit to look into the question of
its liability. It was not explained why an audit was necessary and
why the respondent occupied a special position different from other
rate payers as to be entitled to an audit.
What
it means, therefore, is that summary judgment is resisted, not
because there are any discernible triable issues, but because of the
fanciful challenge of the quantum which the respondent earlier on
admitted as owing; that a request for further particulars has not
been responded to; and that the applicant should commission an audit
before it can claim.
This
is the kind of defence for which the procedure for summary judgment
was invented.
So
that a party whose claim is unassailable, should not be delayed as a
result of the fulminations of a debtor who is ducking and diving to
avoid paying a debt but has nothing meaningful to say; a debtor who
believes he or she can say anything and in the process succeed to
delay the day of reckoning as much as possible. Such a party should
be allowed to take judgment through the procedure for summary
judgement without delay and a debtor in the position of the
respondent should be summarily denied an opportunity to continue
playing games with the court.
The
test to be applied to the respondent's opposing affidavit has been
stated in a number of authorities as being that it has to allege
facts which if established at the trial would entitle it to succeed
in its defence: Rex
v Rhodian Investments Trust (Pvt) Ltd
1957 R & N 723. The respondent has to establish that there is a
mere possibility of success; that there is a plausible case; and that
there is a real possibility of an injustice occurring if summary
judgment is granted: Jena
v Nechipote
1986 (1) ZLR 29 (S)…,.
The
affidavit in opposition must also set out material facts, on which
that defence is based, with sufficient particularity and completeness
to enable the court to decide whether the affidavit discloses a bona
fide
defence: Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418 (A)…,.; Hales
v Doverick Investments (Pvt) Ltd
1998 (2) ZLR 235 (H)…,.
The
opposing affidavit in the present case dismally fails the test. In
fact, there is no doubt that the applicant's case is unassailable.
The respondent admitted liability in writing even before the summons
was issued and made a payment plan. It has not honored that plan
leaving it still liable. There is therefore nothing the respondent
can say at the trial to change that.
In
the result, it is ordered that:
1.
Summary judgment be and is hereby entered against the respondent in
the sum of US$64,166=83 together with interest at the rate of 6% per
annum from 1 October 2014 to date of payment in full.
2.
The respondent shall bear the costs of suit on the scale of legal
practitioner and client.
