Application
for Summary Judgment
TAKUVA
J: This
is an application for summary judgment in terms of Order 10 Rule 64
of the High Court Rules 1971.
The
applicant, a local authority is obliged by the law to provide certain
services to residents of the City of Bulawayo which services include
the provision of road maintenance, refuse collection and water and
sewer services.
The
respondent is a resident of the City of Bulawayo and is the
registered owner of a certain immovable property otherwise known as
number 58A Robert Mugabe Way, Bulawayo.
In
fulfillment of its legal obligations, applicant provided the services
stated above to the respondent and raised service charges amounting
to US$20,126,40.
Respondent
failed and/or refused to pay the above mentioned service charges and
applicant issued a summons on 10 December 2013 claiming:
(a)
Payment of $20,126,40 being the total service charge due and payable;
(b)
Interest a tempore
morae,
at the prescribed rate from the 30th
day of January, 2011 to the date of payment;
(c)
Costs of suit.
The
summons was served on the respondent on 13 December 2013 and it
entered appearance to defend on 17 December 2013. On 10 January 2014,
respondent's legal practitioners requested for further particulars
as follows:
“To
enable the defendant to plead, plaintiff should supply the following
particulars;
1.
It is alleged in para 3 of plaintiff's declaration that it provided
services to defendant and as such is entitled to levy; rates; road
levy; water and other services of the $20,126,40, how much is for:
(i)
Rates;
(ii)
Road levy;
(iii)
Water; and
(iv)
Other services.
2.
The said sum is $20,126,40 is for which period (sic),
a full itemized breakdown is requested.
3.
The claimed sum is said to have a component of rates:
(a)
How much is the monthly rates in respective of the property;
(b)
Since the rates are a percentage of the value of the property how
much is the property valued at.”
Applicant
supplied its further particulars on 18 March 2014 as follows:
“Plaintiff
replies to defendant's request for further particulars as follows:
1.
Ad paragraph 1 thereof
(i)
The charges vary from month to month but charges are calculated as
shown from Annexure “A” hereto which represent the charges for
30th
November 2013 totalling $770,36 and for 31st
December 2013 in the sum of $699,27.
(ii)
For the period 30th
January 2011 to the 30th
November 2013 amounting to $20 215,50. See Annexure “B” hereto.”
2.
Ad paragraph 2 thereof
See
Annexure “B” hereto.
3.
Ad paragraph 3 thereof
(a)
$500,00 see Annexure “A” hereto.
(b)
Land valued at $393,500 and improvements valued at $65,000,00. See
Annexure 'A' hereto.”
Respondent
who was supposed to have filed his plea on or before 3 April 2014 in
terms of the Rules of this Court failed to do so.
Applicant
applied for summary judgment on 17 April 2014 on the ground that
respondent has no bona
fide
defence and that the appearance to defend and the request for further
particulars were nothing more than ways of buying time.
The
application was vigorously opposed on the following grounds:
1.
Wilful disregard of the law
The
submission here is that the present application ought to be dismissed
for want of compliance with the peremptory provisions of section 279
and 281 of the Urban Councils Act (hereinafter called the Act).
Section 281 reads:
“Legal
proceedings for recovery of rates
No
legal proceedings for the recovery of rates shall be instituted
against any person referred to –
(a)
In subsection 2 of section two hundred and seventy-nine unless the
council has complied with that subsection and the owner has failed
within fourteen days to comply with the demand served on him in terms
of that subsection requiring him to pay the amount stated therein; or
(b)
In subsection (3) of section two hundred and seventy-nine unless he
has failed within thirty-days to comply with the demand served on him
in terms of that subsection requiring him to pay the amount stated
therein, subject to the maximum amount provided for in that
subsection.”
Section
279 of the Act states:
“Liability
to pay rate
1.
The person who is the owner of any property on the date on which any
rate fixed and levied by the council becomes due and payable shall be
primarily liable for that rate.
2.
If on the date on which a rate becomes due and payable, the owner
primarily liable has failed to pay that rate, a demand in writing may
be served on him requiring him to pay the amount stated therein
within fourteen days of the service of the demand.
3.
If the owner primarily liable for a rate fails to comply with the
demand referred to in subsection (2) then any person who at any time
during the period in respect of which such rate was fixed and levied
–
(a)
is the occupier of the property concerned shall, if a demand in
writing is served on him by the council, be liable for such rate
together with any other unpaid rates in respect of such property, not
exceeding the amount of any rent in respect of such property due by
him but not yet paid at the time of the demand and shall thereafter
continue to pay such rents to the council until the amount of the
unpaid rates has been paid off;
(b)
as agent or otherwise, receives any rent in respect of such property,
shall, if a demand in writing is served on him by the council, be
liable for such rate, together with any other unpaid rates in respect
of that property, not exceeding the amount of any such rent paid to
him subsequent to that demand, subject to the deduction by the agent
of commission due to him for the collection of that rent.
(c)
The persons referred to in paragraphs (a) and (b) of subsection (3)
shall be liable for the rates to the amount specified therein jointly
and severally with each and with the owner primarily liable.
4.…”
The
crisp point made by the respondent is that in terms of these
provisions, it was incumbent upon the applicant to serve respondent
with a demand, in writing requiring it to settle its dues within (14)
fourteen days from the date of such demand.
It
was further contended that these provisions are peremptory in that
the applicant cannot institute legal proceedings before serving the
owner with the demand giving him fourteen (14) days to comply.
In
casu
since such a demand has not been issued by the applicant, it has
failed to comply with the law and the proceedings are a nullity, so
the argument goes.
Respondent
relied on:
(a)
Maxwell: Interpretation
of statutes
(7th
ed) at p316.
(b)
Nkisimane
& Others
v Santam
Insurance Co. Ltd
1978 (2) SA 430 (A) at 434.
(2)
Disregard
of a Ministerial Directive
Respondent's
contention here is that the ministerial directive does not give the
applicant an option to institute legal proceedings against the
respondent for rates and other charges that fall within the period
covered by the directive.
Respondent
submitted that while it is required to pay its dues as a corporate,
the applicant ought to have engaged the respondent and “endeavored
to find mutually convenient solutions.”
This
is mainly so because the directive states; “where they have
challenges, viable arrangements shall be worked out with the relevant
local authorities.”
Put
differently, respondent's argument is that before resorting to
litigation, applicant should have initiated some form of discussion
to resolve the dispute.
(3)
Fatal
non-joinder
Respondent
argued that a proper interpretation of sections 279 and 281 is that
it is obligatory on the part of the applicant to sue any occupiers
and agents if any together with the owner of the premises.
In
casu,
it was submitted that applicant ought therefore to have joined Dawn
Properties, the respondent's property managers or agents as 2nd
respondent in this suit.
Before
I deal with these grounds let me deal with a side issue, namely the
application for leave to file a supplementary affidavit by the
applicant.
This
application was made and argued by the parties on the day of the
hearing of this matter.
The
applicant justified its application on the fact that respondent
raised in its notice of opposition a whole range of points in
limine
not anticipated when it constructed the application.
Applicant
relied on Rule 67(c)(1) of the High Court Rules 1971. Order 10 Rule
67(c)(1) states:
“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.”
It
is common cause that after being served with further particulars that
it had requested, respondent took no further action. It did not file
a plea which naturally would have dealt with the defence extensively.
From
19 March 2014 to 17 April 2014 respondent simply sat back and did
nothing.
It
did not contact the applicant's legal practitioner to set in motion
some sort of negotiations. It is only after applicant had applied for
summary judgment that respondent woke up from its slumber and filed a
notice of opposition raising numerous technical points referred to
above.
In
my view, the matters raised by the respondent in its notice of
opposition are matters that the applicant could not reasonably be
expected to have dealt with in its first affidavit.
Why
would applicant be expected to deal with a defence wherein a
registered owner of immovable property within its jurisdiction who
has been receiving and paying for services rendered in the past,
suddenly claims not to be liable for the payment of such service?
It
is reasonable for applicant to expect a defence to the effect that
the amount has been paid fully or partially.
In
Kingstons
Ltd
v D.
Ineson (Pvt) Ltd
2006 (1) ZLR 451 (5) it was held that:
“In
summary judgment proceedings, not every defence raised by a defendant
will succeed in defeating a plaintiff's claim. What the defendant
must do is to raise a bona
fide
defence, or a plausible case, with sufficient clarity and
completeness to enable the court to determine whether the affidavit
discloses a bona
fide
defence. The defendant must allege facts, which if established, would
enable him to succeed. If the defence is averred in a manner which
appears in all circumstances needlessly bald, vague or sketchy that
will constitute material for the court to consider in relation to the
requirement of bona
fides.
The defendant must take the court into his confidence and provide
sufficient information to enable the court to assess his defence. He
must not content himself with vague generalities and conclusory
allegations not substantiated by solid facts. … The
proviso to R67 of the High Court Rules 1971 is therefore to be
restrictively interpreted.”
The
restrictive interpretation is meant to prevent a plaintiff in summary
proceedings to dispense with the provisions of the main rule itself
which bars him from adducing evidence except through his original
affidavit.
The
real purpose of the proviso is not to enable a plaintiff to proffer a
reply to respondent's affidavit otherwise, summary judgment
proceedings would degenerate into a court application.
However,
in those limited circumstances listed in R67(c)(i)(ii), the use of an
answering or supplementary affidavit is permissible.
For
these reasons, I am of the view that in
casu
the
use by applicant of the answering affidavit is permissible.
I
shall now at this stage decide whether the applicant has made out a
case for summary judgment.
The
principles are well settled in our jurisdiction. In Jena
v Nechipote
1986 (1) ZLR 29 (S) GUBBAY JA (as he then was) pointed out that in
order to defeat an application for summary judgment, all the
defendant has to establish “is that there is a mere possibility of
his success; he has a plausible case; there is a triable issue; or
there is a reasonable possibility that an injustice may be done if
summary judgment is granted.”
See
also Standard
Chartered Bank Zimbabwe Ltd
v Matiza
1994 (1) ZLR 186 (H).
In
TIMNDA
Truck Parts (Pvt) Ltd
v Autolite
Distributors (Pvt) Ltd
1996 (1) ZLR 244 (H) CHATIKOBO J (as he then was) commented thus;
“In
an application for summary judgment, the applicant must do no more
than simply assert that he has a good claim, that he believes that
the defendant has no bona
fide
defence and that the defendant has entered an appearance to defence
for the purpose of delay. The applicant is obliged by Rule 67 of the
High Court Rules to adduce evidence in its substantiation of its
claim to summary judgment. That evidence must establish the facts
upon which reliance is placed for the applicant's assertion that
the applicant's claim is unimpeachable. The need to adduce such
evidence is even stronger when the original summons lacks details of
the claim against the defendant.”
Finally
in van
Hoogstraten
v James
& Ors
2010 (1) ZLR 608 (H) MAKONI J stated that:
“The
law of summary judgment is settled in our jurisdiction. It is a
drastic remedy in which the plaintiff, whose belief is that the
defence is not bona
fide
and entered solely for dilatory purposes, should be granted immediate
relief without the expense and delay of a trial. It has far reaching
consequences, as it effectively denies the defendant the benefits of
the fundamental principle of the audi
alteram partem
rule. It can only be granted to the plaintiff when all proposed
defences to the claim are clearly unarguable, both in fact and in
law. The defendant does not have to establish his defence on the
probabilities. All he needs to do is to allege facts, which disclose
a defence. These facts, if pleaded and accepted at the trial, must be
sufficient to establish a defence.”
See
also Chiadzwa
v Paulkner
1991
(2) ZLR 33 (S) and Nedlaw
Investments & Trust Corp Ltd
v Zimbabwe
Development Bank
S-5-00.
What
the authorities state quite simply is that relief by way of summary
judgment is of an unusual kind that is meant to grant a plaintiff
with an apparent clear right a speedy means of relief against a
delaying or recalcitrant debtor.
The
court therefore has a discretion whether or not it will enter summary
judgment.
That
is a stringent power whose exercise must be watched, strictly in
order to see that the plaintiff has brought himself to within the
scope of the provisions of the rule. However, this does not mean that
every unsubstantial technicality raised by the defendant must be
given effect. Rather, the proper approach is that care must be taken
to see that the plaintiff has, in accordance with the terms of the
rule made out a cause of action to which the defendant can have no
possible defence.
In
the present case, the respondent's first proposed line of defence
is that the applicant's messenger one Kevin Adams lied under oath
that a letter required to be served upon the respondent in terms of
section 279 and 281 of the Urban Councils Act was served on the
respondent when in fact no such letter was served.
It
was further submitted that respondent has since filed a police report
against the messenger for perjury.
Respondent
believed that the letter was prepared merely as an afterthought after
the summons had already been issued and after applicant had realized
that the failure to comply with the Act was fatal to its case. This
fact, according to the respondent is supported by the fact that the
letter is not signed and there is no acknowledgment of receipt by
respondents.
Applicant's
submission was that Kevin Adams did not lie at all and therefore the
dirty hands principle does not apply.
As
regards the argument that Trishul does not exist, applicant submitted
that this does not make sense because the Deputy Sheriff served a
summons on 13 December 2013 at the same place on a manager called
Trishul. After the summons was served on Trishul respondent entered
an appearance to defend. This means respondent saw the summons.
In
my view, it is not a mere coincidence that Adams and the Deputy
Sheriff would visit the same place on different dates and claim to
have seen the same person if that person did not exist.
Clearly,
the Deputy Sheriff did not lie because the respondent acted on the
document that was served on 13 December 2013. Earlier, on 14 November
2013, Adams had delivered a letter to a Mr Trishul at the same
premises.
For
these reasons, l find that the dirty hands principle cannot be
sustained as there is no evidence that Adams lied.
As
regards the second line of defence, applicant submitted that it wrote
and served Annexure C on the respondent. It was further contended
that Annexure C complies with the provisions of section 279 of the
Act in that it was written at the instructions of applicant and it is
a letter of demand.
Annexure
C is a letter of demand dated 13th
November 2013 and addressed to the respondent's manager. It states:
“Re:
Bulawayo City Council vs Trishul Properties A/C 31408503
We
act on behalf of the Bulawayo City Council which has instructed us
that you owe it rates and water charges amounting to $20 126,40,
which sum, despite demand you have failed and/or refused to pay.
Our
client has instructed us to demand from you as we hereby do, payment
of the whole amount outstanding together with interest at the rate of
5% and legal costs.
You
are required to settle the debt by no later than the 30th
November 2013 or to agree with us acceptable terms of payment by that
date, failing which our instructions are that we should issue summons
against you without further notice.”
(my emphasis)
The
argument that applicant had no authority to delegate its power to a
legal practitioner does not make sense at all.
Section
281(a) of the Act does not prohibit applicant from appointing an
agent to act on its behalf.
The
letter that is Annexure C is as good as it had been written by
applicant itself.
Consequently
I find that Annexure C is a “demand” as contemplated by section
281 of the Act. Therefore, that defence is devoid of merit.
The
third proposed defence is bogus and bad in law. It demonstrates quite
clearly applicant's lack of bona
fides. I
say so for the following reasons;
(a)
the directive is meant to cushion individual rate payers from the
severe effects of economic challenges experienced during the period
in question.
(b)
corporates (like respondent) are expressly excluded in paragraph 3
which states:
“…Please
note that corporates
are expected to pay their obligations in full and where they have
challenges viable arrangements shall be worked out with the relevant
authorities.”
(my emphasis)
(b)
the directive does not bar Councils from suing corporates where no
viable arrangements have been worked out.
(c)
in any case, Annexure C invited respondent to enter into payment
arrangements but respondent ignored it.
(d)
the tenor of the above quoted paragraph of the Directive shows that
the onus is on corporates facing challenges to initiate efforts to
arrange viable payment plans. It is naïve and absurd to suggest
otherwise for it would be a sad day in our commercial law if a debtor
is permitted to say to a creditor; I know I owe you so much but
before I pay, you must get down to your knees and ask when and how I
shall pay.
For
these reasons this third line of defence is without merit.
The
fourth and last line of defence relates to the alleged fatal
non-joinder. Once more, I find the respondent's argument difficult
to follow.
Section
279(1) of the Act is very clear in that it states that the person who
is the owner “shall be primarily liable for that rate.”
In
terms of subsection (2) of section 279, applicant is allowed to
institute legal proceedings against the landlord after 14 days notice
to pay while in respect of tenants and agents a notice of 30 days has
to be given.
Quite
clearly if it was intended that they be sued jointly, there would
have been no need for the difference in the notice period.
In
any case, subsection (3) of section 279 makes it clear that occupiers
and agents only become liable “if the owner primarily liable for a
rate fails to comply with the demand referred to in subsection (2).”
These
provisions, if considered contextually do not mean that failure to
sue the owner jointly with occupiers and/or agents is fatal to the
proceedings.
In
any event, it would be unreasonable to expect the applicant to know
that there were tenants occupying the building without being notified
by the respondent of the presence of such tenants and what their
particulars were. Equally so, how would applicant be expected to know
that there was an agent who was receiving any rent in respect of the
property, if respondent had not informed applicant of that fact?
I
find for these reasons that there was no mis-joinder in this case.
The
respondent has not said anything on the merits apart from a vague and
bold assertion that applicant has not taken into account amounts paid
by the respondent.
The
opposing papers do not reveal any defence let alone a bona
fide
defence to the claim. The respondent has not raised any arguable or
triable issues as I have demonstrated. Therefore, the applicant
should not be subjected to the delay and expense of going to trial.
As
regards costs, despite knowledge that its defences were bogus and bad
at law, respondent proceeded to mount a spirited opposition to the
application, forcing applicant to incur unnecessary expenses. Such
conduct should be discouraged and the only way to do so is by an
award of costs at a higher scale.
Further,
respondent's conduct is an abomination in that by refusing to pay
its own fair share of expenses for service provision, it has forced
the applicant to either supplement its own funds or let the rest of
its rate payers suffer. Such selfish conduct is unacceptable.
Accordingly,
I make the following order:
1.
Summary judgment be and is hereby granted to the applicant in the sum
of $20,126,40 being the arrear service charges due and payable by
respondent.
2.
Respondent pays interest a tempore
morae
at the rate of 5% per annum reckoned from the 30th
day of January 2011 to the date of payment.
3.
Respondent shall pay costs of suit on client and attorney scale.
James,
Moyo-Majwabu & Nyoni,
applicant's legal practitioners
Dube-Banda,
Nzarayapenga & Partners,
respondent's legal practitioners
