Civil
Appeal
MATHONSI
J: This
is an appeal against the judgment of the Magistrates Court sitting at
Gweru delivered on 4 November 2015 in which it granted summary
judgment in favour of the respondent in the sum of $3,750-00 together
with interest at the rate of 5% per annum from 2 June 2015 to date of
payment and costs of suit on an attorney and client scale.
The
appellant takes issue with that judgment on the grounds that the
court a
quo
misdirected itself in failing to appreciate that she had a valid and
bona
fide
defence to the claim by virtue of the fact that the respondent had
seen it fit to file an answering affidavit, an admission that there
were triable issues. In addition, the respondent approached the court
with dirty hands because the parties had entered into an illegal loan
agreement which could not be enforced in a court of law as the
respondent sought to unjustly enrich himself at her expense. She also
takes issue with the award of attorney and client costs.
The
brief background is that the appellant signed an affidavit before a
Commissioner of Oaths on 7 May 2015 which reads:
“I,
Mercy Mazvita Nyamanhindi, 29-225330 M42 residing at 1819 Boogie Road
Riverside Gweru do hereby solemnly and sincerely swear/declare the
following: that I owe Chivaura Gift 22-226879A 22 the sum of USD3,750
(three thousand seven hundred and fifty dollars only). I undertake to
pay the full amount on or before 2 June 2015.”
When
the respondent sued out a summons for payment of the sum acknowledged
as owing by the appellant out of the Magistrates Court in Gweru, the
appellant was quick to enter appearance to defend and file a request
for further particulars demanding an array of extraneous information.
She sought to know the person who drafted the affidavit attached to
the summons, the circumstances under which it was signed, whether
there were witnesses when the money was advanced and whether the
demand for payment had been in writing or verbal.
The
respondent filed an application for summary judgment on the basis
that the appellant had not a bona
fide
defence to the claim as his claim was unassailable premised, as it
was, on a sworn statement deposed to by the respondent before a
Commissioner of Oaths. The application was opposed by the appellant.
The
gravamen of the appellant's disquiet is contained in paragraph 2 of
her opposing affidavit which reads:
“2.
Ad
Paragraph 3-14
As
shown on record, I filed my request for further particulars on the
21st
September 2015 and accordingly served it on the Applicant. The
request for further particulars clearly shows that I have a valid
defence to the applicant's claim. The applicant gave me a loan of
US$300-00 sometime early this year. The terms of the loan agreement
[were] that it would attract a hefty interest of 20% per month.
At
the material time I was forced to sign the affidavit because the
applicant, being a ZIMRA official had indicated that he was going to
impose several fines and taxes on my struggling business Shortlink
Investments. Since my business is my sole source of income to which
my parents and my little daughter survive on, I was forced to sign
it.”
In
my view, a defence has never been more bogus. It certainly cannot
withstand scrutiny.
It
is unfortunate that the appellant did not state the exact date when
the alleged loan of $300-00 was advanced to her, or whether it was
advanced at the time that she signed the acknowledgement of debt on 7
May 2015 or at the beginning of 2015. She did not state what she
meant by “sometime early this year.”
Whatever
the case that story does not make sense.
Assuming
by that phrase she meant January 2015, it means that when she signed
the acknowledgment of debt on 7 May 2015, a period of 4 months had
lapsed since the $300-00 was advanced to her. If that were the case
interest at the rate of 20% per month would be $60-00 x 4 months
which equals only $240-00. It means therefore that she should have
acknowledged indebtedness in the sum of $300-00 plus $240-00 interest
which equals only $540-00 and certainly not the sum of $3,750-00 that
she acknowledged.
On
the other hand, assuming that by the phrase “sometime early this
year” is meant on 7 May 2015, a date which is clearly not early in
the year, and considering that she was undertaking to repay the money
in one month's time, on 2 June 2015, it means that if interest was
reckoned at the rate of 20% per month barely $60-00 would have
accrued by that date. She should have acknowledged indebtedness in
the sum of only $360-00 and not $3,750-00.
What
is more, reference to the respondent being a ZIMRA official who would
impose fines and taxes on her struggling business appears far-fetched
and disconcerting to the defence that is sought to be raised, if not
completely detached from it. It does not explain why she took the
loan from what was an un-mitigated loan shark. She does not say that
she was forced to take the money. Surely if there were such strings
attached to it, she should have simply refrained from taking it. She
also does not say when and how she paid it back.
Little
wonder the court a
quo
was not impressed by that defence. It reasoned thus:
“The
acknowledgment was signed on 7 May 2015 and commissioned by a legal
practitioner from Danziger and Partners, Patience Takayendesa. Since
then, respondent (appellant therein) has neither reported the alleged
threat to police nor approached the courts seeking the invalidation
of affidavit. She does not say what will or has become of the fear of
reprisals by the ZIMRA official now that she has decided to oppose
the application and allege she was forced to sign. Respondent
therefore has not raised a plausible cause. Her affidavit lacks
clarity and completeness to enable the court to determine whether the
affidavit discloses a bona
fide
defence. Respondent cannot just sign a document and six months later
when a demand is made based on the document suddenly allege that she
was forced to sign. The 'caveat
subscriptor'
rule demands that she must be bound by her signature.”
I
am unable to discern any misdirection in that reasoning.
The
court a
quo
applied the correct legal principles which govern an application for
summary judgment and concluded, correctly in our view, that the
appellant had failed to show a plausible defence to the claim.
The
considerations in an application for summary judgment are well
settled in our law.
The
test to be applied to the respondent's opposing affidavit is that
the respondent must allege facts which, if established at the trial,
would entitle her to succeed in her defence. See Rex
v Rhodian
Investments Trust (Pvt) Ltd
1957 R & N 723. She must establish that there is a plausible case
and that there is a real possibility of an injustice occurring if
summary judgment is granted. See Jena
v Nechipote
1968 (1) ZLR 29 (S) 30 D-E.
The
opposing affidavit must also set out material facts on which the
defence is based with sufficient particularity and completeness to
enable the court to decide whether the affidavit discloses a bona
fide
defence. See Hales
v
Doverick
Investments (Pvt) Ltd
1998 (2) ZLR 235 (H) 238 G; 239A.
These
are the principles that were applied by the court a
quo
and there is no misdirection whatsoever.
The
appellant is relying upon duress in order to impugn an acknowledgment
of debt that she signed.
As
stated by the learned author R. H. Christe, Business
Law in Zimbabwe,
2nd
edition, Juta & Co Ltd, at page 83:
“The
threat must be of an imminent or inevitable evil, meaning that it
cannot be averted otherwise than by agreeing to the contract.”
Unfortunately
that cannot be said of the appellant.
She
could have avoided the contract. She is deliberately being vague in
order to create an impression that she may have a case when she has
none. Parties who are quick to sign documents acknowledging
indebtedness must know that first and foremost, the law accepts that
they are bound by whatever appears above their signature on the basis
of the caveat
subscripto
rule.
If
they allege duress in appending a signature they must satisfy the
requirements of the law for vitiating consent to a contract, that is
to show that when contracting they were acting under the physical or
moral constraint of the other party or a third party. They should not
be content with fanciful and vague allegations which they cannot
particularise. See J. W. Wessels, The
Law of Contract in South Africa,
Vol 1, 2nd
edition, Butterworths & Co Ltd at paragraph 1165.
We
conclude therefore that the appeal has no merit. It is accordingly
dismissed with costs.
Bere
J agrees……………………………………………….
Makonese
Chambati and Mataka,
appellant's legal practitioners
Kadzere,
Hungwe & Mandevere,
respondent's legal practitioners
