This
is an application for a summary judgment brought in terms of Rule
64(1) of the High Court Rules.
Vusani
G.D. Sibanda (hereinafter referred to as the first respondent), is
the Director of Orril Enterprises (Pvt) Limited (hereinafter referred
to as the second respondent).
Sometime
in September 2013 the applicant and the second respondent entered
into a verbal agreement in terms of which the second respondent was
to purchase a motor vehicle on behalf of the applicant at a ZIMRA
Public Auction in Harare. Pursuant to that agreement the applicant
paid to the second respondent a sum of $400=, being part of the
bidder's card, to facilitate the second respondent to purchase the
vehicle on behalf of the applicant.
On
26 October 2013, the second respondent, through the first respondent,
authored a correspondence to the applicant to the effect that the
second respondent had secured a Toyota Fortuner, Lot Number 224, with
the bid value of US$12,300=. On 11 November 2013, the applicant
deposited a sum of US$12,000= into the second respondent's FBC Bank
account in Kwekwe.
Although
the money was drawn by the respondents in terms of the agreement, the
respondents failed to deliver the vehicle resulting in the applicant
demanding a refund of the money. Despite several demands the
respondents failed to either deliver the vehicle or refund the money.
From 4 September 2013 to 21
February
2014 there were various excuses and un-fulfilled promises from the
respondents as evidenced by the sms messages on annexure E.
In
response to the applicant's request, the respondents wrote a letter
of acknowledgement and giving the applicant three options. In the
letter of 31 January 2014 they stated as follows:-
“RE:
Purchase of Motor Vehicle
We
write in response to your enquiry on the delay of the motor vehicle
(Toyota Fortuner Lot No. 224) as per our agreement. Kindly note that
the bid value of the vehicle in question has been contested by the
seller and Zimra is taking precautions before they can release the
car.
Kindly
advice which option will suit you best of the below listed:-
1.
Wait until issue is resolved with Zimra and vehicle owner.
2.
Full Refund (US$12,300=).
3.Sourcing
of alternative vehicle.
Please
accept our sincere apologies in the delay of closure of this issue.
We thank you for your patience and your continued patronage.
Yours
…,.
Vusani
G.D Sibanda
(For
and on behalf of Orril Enterprises)”
By
5 March 2014 nothing was fulfilled. The applicant then issued summons
against both respondents.
What
is now clear is that the respondents have now changed their minds.
They are now contesting the applicant's claim on the ground that
they connived with the applicant to write a false letter of 26
October 2013 wherein they inflated the bid value of the vehicle by
US$3,000= because the applicant wanted the extra US$3,000= from her
employer to purchase a Stand. The letter stated as follows:-
“RE:
PURCHASE OF MOTOR VEHICLE
Thank
you for showing interest in engaging our services in securing a motor
vehicle for you from ZIMRA Auction Rummage Sale. The suitable vehicle
I have sourced for you is a Toyota Fortuner, Lot No. 224, with a bid
value of (USD12,300=) subject to confirmation. Please also note that
Orril Enterprises will perform all formalities as regards to
registration. Find copy of sales conditions from auctioneer.
It
is also in your own interest to note that these vehicles are disposed
of by ZIMRA as a result of them having been seized for lack of proper
clearance formalities. Attached is a copy of sale conditions; pay
particular attention to condition 3, 4, 5, 8 and 9.
Our
banking details are as follows:
FBC
Bank
Kwekwe
Branch
Account
No. 6142641350135
Yours
Faithfully
…,.(signed
by DG Sibanda)…,.
Vusani
G.D. Sibanda
(For
and on behalf of Orril Enterprises)”
In
their heads of argument, the respondents stated, in paragraph 6, the
following -
“6.
On the 12th
November, 2013, 2nd
Respendent, through 1st
Respondent, made a withdrawal from 2nd
Respondent's bank account in the sum of US$3,000= and 1st
Respondent physically handed it to Applicant at Nandos food outlet in
Kwekwe. On that particular day Applicant was on her way to
Harare.”
With
the greatest of respect, the respondents are not being truthful to
the court.
This
paragraph contradicts their letter dated 31st
of
January 2014 which I quoted above. If they had paid the applicant
US$3,000= on the 12th
of
November
2013, why would they offer a “Full Refund (USD12,300=)”?
Counsel
for the applicant submitted that the applicant's claim is so clear
and unanswerable as amplified by the papers filed of record. She
submitted, further, that the respondents have no bona fide defence to
the claim.
The
respondents dismally failed to take this court into their confidence.
They failed to produce any evidence of what they are now claiming.
In
casu,
this is an application for summary judgement.
The
rules on summary judgment are clearly that the applicant must allege
that the respondent does not have a bona fide defence and has merely
entered the appearance to defend with the objective, not of
protecting any existing or anticipated right, but for the sake of
delaying a just claim by the applicant.
The
respondents are admitting liability to the tune of US$9,400=. They
failed to prove that they paid back US$3,000=.
In
order to succeed in defeating a summary judgment application, the
respondents must disclose a defence and material facts, upon which
that defence is based, with sufficient clarity and completeness so as
to persuade the court that, if proved at the trial, such facts will
constitute a defence to the claim. Bald and unsubstantiated facts
will not suffice:
Hales v Doverick Investments (Pvt) Ltd
1998 (2) ZLR 235; Kingstons
Ltd v L.D. Ineson (Pvt) Ltd
2006
(1) ZLR 451.
In
the present case, the applicant has been able to prove her claim
right from the beginning up to the end. The respondents acknowledged
their indebtedness to the applicant at each level of the
transactions. Annexure A says -
“ACKNOWLEDGMENT
OF RECEIPT
I,
VUSANI G.D. SIBANDA, do hereby acknowledge receipt of cash in the sum
of US$400= (Four hundred dollars only) being PART OF BIDDERS CARD
ZIMRA AUCTIONS.
DATED
AT KWEKWE ON THIS 3RD
DAY OF SEPTEMBER 2013.
SIGNATURE…,.(of
G.D. Sibanda)
AS
WITNESSES
1.
(first witness)
2.
(second witness)”
The
applicant was able to prove that the respondents have no bona fide
defences to the claim. She is entitled to her claim. The defence
proffered by the respondents is made for purposes of delay the
recovery of the debt. In my view, no defence, whatsoever, has been
shown by the respondents.
In
the result I make the following order; that -
1.
Summary judgment be and is hereby entered in favour of the
applicant's claim in the summons in the following terms;-
(a)
Payment of US$12,400=.
(b)
Interest thereon at the prescribed rate from date of summons to date
of final payment.
(c)
Cost of suit on an attorney and client scale.
