MUREMBA
J:
This
is an application for summary judgment.
The
background of the case is that the applicant who is the plaintiff in
the main matter issued summons against the respondents. The first
respondent entered an appearance to defend whereupon the applicant
made the present application for summary judgment stating that the
first respondent has no bona
fide
defence to the action.
The
facts of this case are as follows.
In
2012 the first respondent conducted an auction sale of immovable
properties in execution of this court's judgments at the
instructions of the second respondent. Among the properties auctioned
were Stand Numbers 163 Philadelphia Township and 23 Carrick Crescent
Hellensvale, Borrowdale, Harare. They were auctioned as Sheriff Sale
numbers 1 and 22 respectively.
The
highest bids for the respective properties were $192,400.00 and
$12,150.00 and these bids were made by the applicant. Having been
declared the highest bidder the applicant was made to pay 10% of the
bid price to the auctioneer before the confirmation of the sales. The
applicant duly paid $19,240.00 and $1,215.00, but the sales were
subject to confirmation by the second respondent.
However,
the second respondent did not subsequently confirm the sales.
For
Sale No.1 he said that the highest bid was lower than the forced sale
value of the property. By way of a letter dated 17 October 2012, the
second respondent directed the first respondent to refund the
applicant all his money including commission and sell the property by
private treaty. When the first respondent did not take heed the
second respondent, on 27 November 2012, wrote yet another letter
reiterating that the first respondent was supposed to refund the
applicant all the money that he paid.
The
Sheriff (second respondent) did not confirm Sale No.22 because the
judgment debtor's legal practitioners had objected to the sale. By
way of a letter dated 17 October 2012, the second respondent directed
the first respondent to refund the applicant all the money that he
had paid including commission. The first respondent did not comply.
On
6 December 2012, the second respondent had to write another letter
and in that letter he actually said;
“Please
refund him his monies since you are entitled to your commission upon
confirmation.”
The
applicant's claim is for a refund of the money that he paid as
deposit.
The
applicant averred that there is no justification for the respondent
to refuse to refund the money when the sales did not go through. The
applicant also made a prayer for costs on a legal practitioner client
scale for abusing court process by defending an action which is so
clear. It was further averred that the appearance to defend was
entered for the purposes of delaying proceedings.
In
opposing this application the first respondent stated that it
conducted the auction in its capacity as an agent and as such was
entitled to payment of a commission. It was averred that that money
that was paid by the applicant is the commission and not a deposit of
the purchase price as the plaintiff was alleging. It was further
averred that as an agent once it introduced the purchaser, its work
was done and was entitled to payment.
The
first respondent prayed for the dismissal of the applicant's
application with costs on a legal practitioner and client scale on
the basis that the application was unwarranted and since the
applicant was aware of the legal position he ought not to have made
the application.
After
the first respondent had filed the notice of opposition and the
opposing affidavit the applicant went on to file an answering
affidavit without the leave of the court.
However,
it is apparent that the applicant was aware of the need to seek the
court's leave first before filing the answering affidavit. This is
evidenced by the fact that he raised it in his heads of argument,
well before the first respondent had raised it in its heads of
argument. In his heads of argument the applicant indicated that the
answering affidavit ought to be admitted despite him having flouted
the procedure.
In
the heads of argument the first respondent challenged the filing of
the answering affidavit by the applicant citing Rule 67(c) of the
High Court Rules which states that an answering affidavit in a
summary judgment application should be filed with the leave of the
court. The Rule reads;
“67.
Limitations as to evidence at hearing of application
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)
……….;
(b)………….;
(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.”
The
applicant's counsel argued that the answering affidavit should be
admitted by the court because it was in the interest of justice to do
so for it served to demonstrate that the first respondent has no bona
fide
defence. He went on to cite the case of Scotfin
Ltd v
Afri Trade Supplies
(Pvt)
Ltd
1993 (2) ZLR 170 (H) wherein ROBINSON J at p 176 said;
“Let
me say, in passing, that I consider that the stage has now been
reached where an applicant for summary judgment should always be
allowed to file a replying affidavit to show that a respondent's
opposition to his application is not bona fide or is ill founded.”
The
applicant's counsel argued that the Scotfin
case
supra
marked a departure from the previous position of always requiring the
leave of the court to file an answering affidavit.
The
Scotfin
case falls on all fours with the present case in that the applicant
in that case had also filed an answering affidavit without the leave
of the court. In the heads of argument the respondent raised a point
in
limine
for the answering affidavit to be struck out on the grounds that it
had been filed without the leave of the court. ROBINSON J allowed a
departure from Rule 67 in terms of Rule 4C(a) and admitted the
answering affidavit on the basis that at the time the applicant made
its application it had no knowledge that the respondent would raise
the defence that it raised in the opposing affidavit.
ROBINSON
J went on to recommend an amendment of Rule 67. He said:
“In
this regard, I can see no good reason for distinguishing any longer
between an applicant for summary judgment and any other applicant
insofar as the filing of a replying affidavit is concerned.
Accordingly, I would strongly recommend that our Rules of Court be
amended to entitle an applicant for summary judgment to file a
replying affidavit if he so elects.”
This
was just but a recommendation.
However,
it is apparent that despite the recommendation by ROBINSON J, Rule 67
has not been amended to allow an applicant to file an answering
affidavit without the leave of the court if he so elects. The Rule
still says;
“provided
that the court may permit the plaintiff to supplement his affidavit
with a further affidavit….”
The
applicant's counsel submission that the court's leave is no
longer required is not correct. The leave of the court is still
required for the applicant to file an answering affidavit. So before
filing the answering affidavit the applicant should have sought the
leave of the court first.
The
applicant did not proffer any explanation why it did not seek the
leave of the court to file the answering affidavit as is required by
Rule 67(c). It is clear that the applicant was well aware that he
needed the court's leave to do so, but deliberately chose to
disregard the Rule and mislead the court by saying that in the
Scotfin
case it was said that in summary judgment applications the applicant
should always be allowed to file a replying affidavit to show that
the respondent's opposition is not bona
fide.
As
I have already explained above, this was just but a recommendation by
the then Judge ROBINSON. The Rule is very clear that the leave of the
court should be sought first.
In
the absence of a satisfactory explanation for the lack of adherence
to the Rule I do not see why I should admit the answering affidavit.
In any case considering the contents of the answering affidavit there
is nothing new that is being raised by the applicant which was not
said in its founding affidavit.
I
will therefore disregard the answering affidavit.
In
an application for summary judgment the applicant should show that he
has an unanswerable claim which is based on a clear cause of action.
See Rule 64 of the High Court Rules and also Pitchford
Investments (Pvt) Ltd v
Muzariri 2005
(1) ZLR 1.
In
Cabs
v
Ndahwi
HH18/10 Makarau JP (as she then was) stated that a plaintiff
resorting to summary judgment must have an unanswerable claim as
pleaded in his summons and declaration and as verified in the
affidavit that must be filed in terms of the Rules.
On
the other hand, in terms of Rule 66(1), for the court to dismiss an
application for summary judgment the defendant must satisfy the court
that he has a good prima
facie
defence to the action.
In
Hales
v
Daverick Investments (Pvt) Ltd
1998 (2) ZLR 234 (H) it was held that [headnote];
“Where
a plaintiff applies for summary judgment against the defendant and
the defendant raises a defence, the onus is on the defendant to
satisfy the court that he has a good prima facie defence. He must
allege facts which if proved at the trial would entitle him to
succeed in his defence at the trial. He does not have to set out the
facts exhaustively but he must set out the material facts upon which
he bases his defence with sufficient clarity and in sufficient detail
to allow the court to decide whether, if these facts are proved at
the trial, this will constitute a valid defence to the plaintiff's
claim. It is not sufficient for the defendant to make vague
generalisations or to provide bald and sketchy facts.”
In
Stationery
Box (Pvt) Ltd v Natcon (Pvt) Ltd & Another
HH64-10 as per Makarau JP (as she then was) it was stated that in an
application for summary judgment the defendant must raise a defence,
but he does not have to prove it. In raising the defence he must
merely allege facts which, if he can succeed in establishing them at
trial, would entitle him to succeed at the trial. The defence must be
plausible and bona
fide.
It must meet the claim squarely and must amount to a defence at law.
If it does not, the defendant would not have discharged the onus on
him and summary judgment must be granted.
As
correctly submitted by the applicant's counsel, the facts of this
case are common cause. Initially in the opposing affidavit and in the
heads of argument the first respondent stated that it conducted the
auction in its capacity as an estate agent. However, during the
hearing the first respondent's counsel wisely abandoned that
argument and admitted that the first respondent conducted the auction
as an auctioneer.
It
is a fact that the first respondent was engaged by the second
respondent to sell these immovable properties pursuant to some
judgments of this court. The second respondent therefore employed the
first respondent in his capacity as the executing arm of this court.
It follows therefore that the sale of the properties was governed by
the rules of this court, that is, the High Court Rules of 1971.
By
virtue of Rule 350A, the first respondent was nominated by the second
respondent to conduct the sale as an auctioneer and in terms of Rule
354 the sale was done by public auction.
Rule
353 states that the conditions of sale are prepared by the Sheriff.
In
terms of Rule 356, if the Sheriff is satisfied that the highest price
offered is reasonable he shall declare the highest bidder to be the
purchaser, subject
to confirmation of the sale.
In
terms of Rule 359(1), any interested parties may raise objections
against the sale. In terms of Rule 359(7) upon hearing the objecting
parties the Sheriff shall either in terms of Rule 359(7)(a) confirm
the sale or in terms of Rule 359(7)(b) “cancel
the sale and make such order as he considers appropriate in the
circumstances and shall without delay notify the parties in writing
of his decision.”
What
is apparent from Rules 356 and 359 is that the sale is not completed
or finalised at the time the highest bidder is declared the
purchaser, but after the Sheriff has confirmed the sale. If he
decides to cancel the sale, he makes an order as he considers
appropriate.
In
resisting the application,
Mr
Bvekwa
submitted that the first respondent has a bona
fide
defence in that it was entitled to its commission because the law
relating to auctioneers and estate agents is the same according to
Christie, Business
Law in Zimbabwe.
Mr
Bvekwa
argued that the first respondent's basis for refusing to refund the
applicant was that it had substantially performed its mandate, that
of introducing the purchaser (applicant) to the second respondent. It
was argued that that the sale was later not confirmed is neither here
nor there. The job that the first respondent had done entitled it to
a commission because the contract was created when the applicant
accepted the bid.
Mr
Bvekwa
further
submitted
that with the Sheriff's sale, the Sheriff (second respondent) has
standard conditions for all auctioneers he appoints to conduct the
sales. He said the Sheriff has a document which says that the
purchaser will be liable to pay the commission. He also said that it
is not a condition of the sale that money paid would be refunded.
However,
Mr Bvekwa
did not attach the document in question.
It
would have been most helpful if Mr Bvekwa
had
attached the Sheriff's document which sets out the conditions of
sale instead of just making submissions from the bar without any
document to back them.
As
correctly submitted by Mr Mavhiringidze,
Mr Bvekwa
was
essentially leading evidence from the bar.
However,
I would like to believe that Mr Bvekwa
was correct in his submission that with the Sheriff's sale it is a
condition of the sale that the burden of paying commission to the
auctioneer and other selling costs lies with the purchaser or the
successful bidder and not with the Sheriff even if the auctioneer is
an agent of the Sheriff.
My
conclusion is based on the letters which were written by the second
respondent (Sheriff) to the first respondent wherein he was
instructing the first respondent to refund the applicant all his
money including commission.
However,
it is a settled position of the law that in an auction sale
commission is only payable to the auctioneer upon the property being
sold.
In
Crusader
Real Estate Consultancy (Pvt) Ltd v
CABS
1999 (2) ZLR 257 (S) EBRAHIM JA quoted with approval the words of
Bristow J in the case of Martin
v
Currie
1921 TPD 50 at p 53 to the effect that;
“I
think it is clear that the employment of an auctioneer does not give
him any authority except to sell by auction. The case of Muller
v Kemp
(1 Searle 167) was cited to us, which, on the facts, is not in point,
but the court there cited, with approval, a passage from Storey on
Agency which states that the agency of an auctioneer ends as soon as
the auction is held. An
auctioneer is employed to sell property by auction on the conditions
arranged; if he sells the property he gets his commission: if he does
not sell the property he gets no commission.”
Even
DENNING LJ (as he then was) in John
Meacock & Co (a firm)
v
Abrahams (Loescher Third Party)
[1956] 3 ALL ER 660 confirmed this position of the law when he said;
“I
sometimes think it would be a good thing if auctioneers and estate
agents, if a sale did not go through, stipulated for a reasonable
remuneration for their time and labour; but I suppose that would not
be good business. They always claim to be entitled to full
commission, and by so doing, take their chance on the sale going
through to completion.”
In
casu,
the letters which were written by the second respondent to the first
respondent also confirm this position of the law.
After
he had cancelled Sale No.1, in a letter dated 17 October 2012, he
wrote to the first respondent to the effect;
“kindly
sell the above immovable property by private treaty and refund all
monies paid to yourselves including commission to the auction
purchaser.”
In
respect of Sale No.22 the Sheriff, in a letter dated 17 October,
wrote to the first respondent;
“please
be advised that there is an objection to confirmation of the purchase
price by the judgment debtor's legal practitioners Messrs IEG
Musimbe & Partners. The auction purchaser now wants to pull out
of the sale, I therefore request you to refund all monies including
the commission paid to the purchaser.”
Despite
this order by the Sheriff, the first respondent still refused to
refund the applicant. This prompted the second respondent to write
another letter on 6 December 2012 directing the first respondent to
refund the applicant all monies paid as commission. The concluding
paragraph reads;
“Please
refund him his monies since you are entitled to your commission upon
confirmation.”
The
position of the law being that the auctioneer is only entitled to his
commission upon the property being sold, it was therefore imperative
for the first respondent to attach the Sheriff's document which set
out the conditions of the sale in order to show that in setting out
the conditions of the sale the Sheriff allowed a departure from the
settled position of the law by saying that it was a condition of the
sale that the highest bidder was not entitled to a refund even if the
sale was not confirmed by the second respondent and that the
auctioneer was supposed to get his commission even if the sale did
not go through.
In
Stationery
Box (Pvt) Ltd v
Natcon (Pvt) Ltd & Another
supra
Makarau JP (as she then was) stated that the defence that is raised
by the respondent must be plausible and bona fide. It
must
amount
to a defence at law.
If it does not, the defendant would not have discharged the onus on
him and summary judgment must be granted.
In
casu
in the absence of the relevant Sheriff's document to support the
submissions made by Mr Bvekwa
I
cannot say that the first respondent raised a bona
fide
defence for its defence does not amount to a defence at law. At the
same time it does not make sense that the first respondent would then
contradict himself by instructing the first respondent to refund the
applicant in light of its standard document which sets out the
conditions for auction sales.
I
will seal this case by citing the case of Time
Bank of Zimbabwe Ltd
v Culroy
Farm (Pvt) Ltd & Others HH182-03.
In that case it was held that in an application for summary judgment
all the defendant has to do to resist it, is to raise a prima
facie
defence. He has to establish a mere possibility of his success or
that he has a plausible case or that he has a triable issue or that
there is a reasonable possibility that an injustice might be done if
summary judgment is granted.
In
suing the defendants for a debt, the plaintiff Bank produced a
written acknowledgement of debt, written guarantees of the first
defendant's debt by the co-defendants and first defendant's bank
account transactions.
In
opposing the application for summary judgment, the defendants said
that they were no longer indebted to the plaintiff and even made
averments that in fact it was the plaintiff which owed them money.
However, the defendants did not produce any documents to support
their averments and their figures made no sense at all.
It
was held that without any documents to support the defendant's
defence, the court was bound to conclude that the alleged defence was
not bona
fide.
It was said that bald allegations and figures should be discouraged
in such applications.
In
casu
as is required by the law, the applicant managed to establish that he
has an unanswerable claim and a clear cause of action. On the other
hand, the first respondent failed to discharge the onus that it had
to show that it has a good prima
facie
defence.
Mr
Mavhiringidze
argued for costs on a legal practitioner client scale stating that
the first respondent ought to be penalised for disrespecting the
court by raising a frivolous defence to the application.
Mr
Bvekwa
opposed
such costs arguing that the first respondent had put up an arguable
case as it genuinely believed that as an agent it had carried out its
mandate of introducing the purchaser to the second respondent and as
such it was entitled to remuneration.
I
am inclined to agree with Mr Mavhiringidze
that the defence raised by the first respondent is frivolous and it
even knew it. The instructions by the Sheriff to refund the
applicant's money were clear, but the first respondent continued to
be stubborn. Costs on a higher scale are warranted under the
circumstances.
In
the result, the application for summary judgment is granted with
costs on the legal practitioner-client scale.
Madanhi
Mugadza & Co Attorneys, applicant's
legal practitioners
Bvekwa
Legal Practice, defendant's
legal practitioners
