UCHENA
JA:
This
is an appeal against the whole judgment of the High Court Bulawayo
dated 23 July 2020, which dismissed the appellant's appeal against
the decision of the Magistrate's Court granting the respondent
summary judgment against him.
BACKGROUND
FACTS
The
appellant is the owner of a residential property known as number 18
Pingstone Road Kumalo within the City of Bulawayo. His property's
account number is 34452705. He, as is the norm, was billed for water
and rates between August 2013 and November 2018. He did not pay his
bills leading to an accumulated debt of US$4,601.50.
He
says he did not pay the bills because:
1.
He wanted to be billed separately for water and rates citing s281 of
the Urban Councils Act [Chapter
29:15].
2.
That he should not be billed in US dollars when that currency was not
available; and
3.
That the respondent had not disclosed the particulars of the Urban
Councils Act under which the bill was based.
In
terms of s281(1) of the Urban Councils Act the respondent sent a
final letter of demand to the appellant on 16 March 2018. The
appellant did not pay. As a result on 1 November 2018 the respondent
issued summons against the appellant in the Magistrate's Court. He
still did not pay for the, reasons already explained above.
On
13 November 2018 he entered an appearance to defend. Thereafter on 16
May 2019 the respondent applied for summary judgment.
After
taking into consideration the changes which had taken place due to
the coming into force of the Magistrate's Court Rules 2019 the
Magistrates Court granted the respondent's application for summary
judgment. It held that the appellant did not have a bona
fide
defence to the respondent's claim and that he had entered
appearance to defend for purposes of delaying the inevitable eventual
payment of the respondent's claim.
Aggrieved
by the granting of summary judgment the appellant appealed to the
court a
quo.
In
his grounds of appeal he raised two issues;
(i)
that he had not been billed separately for rates and water; and
(ii)
that the application for summary judgment had been made more than 7
days after entry of his appearance to defend.
The
respondent opposed the appeal.
On
hearing the appeal the court a
quo
held
that the application for summary judgment was made in terms of the
rules and the appellant had no bona
fide
defence to the respondent's claim. He dismissed the appeal with
costs on the higher scale holding that the appeal marks vexatious
conduct and an abuse of the process of court.
Undeterred
the appellant appealed to this Court on four grounds which raise the
following issues:
1.
Whether the application for summary judgment was made in terms of the
rules.
2.
Whether the appellant had a defence to the respondent's claim.
SUBMISSIONS
ON APPEAL
The
appellant who appeared in person submitted that:
1.
He should have been billed separately for rates and water; and
2.
That the summary judgment granted by the Magistrate's Court and was
upheld by the court a
quo
was irregularly granted because according to the 1980 Rules summary
judgment should be applied for within seven days after the
defendant's entry of appearance to defend.
In
response Mr Dube
for the respondent submitted that the Magistrate's Court Rules 1980
were no longer applicable when summary judgment was applied for on 16
May 2019 as they had been replaced by the Magistrates' Court Rules
2019 on 1 February 2019.
On
the issue of ss279 and 281 of the Urban Councils Act he submitted
that these sections do not entitle the appellant to be billed
separately for rates and water but merely provide for the procedure
to be followed by the respondent when suing for unpaid rates and
water bills.
THE
LAW
The
Magistrate's Court (Civil) Rules 1980 were repealed and substituted
by The Magistrate's Court (Civil) Rules 2019. The Magistrates
(Civil) Court Rules 2019 came into operation on 1 February 2019.
Therefore from 1 February 2019 the 1980 Rules were no longer in use.
The
procedure to be followed was that provided in the Magistrate's
Court Rules 2019.
Order
15 Rule 1 and 2 of the Magistrates's Court (Civil) Rules 1980 which
provided for when an application for summary judgment could be made
provided as follows:
“1.
When application for summary judgment may be made
1.
Where a defendant has entered an appearance to defend, the plaintiff,
whether in convention or reconvention, may apply to the court for
summary judgment on any claim in the summons which is only —
(a)
on a liquid document; or
(b)
for a liquidated amount in money; or
(c)
for the delivery of specified movable property; or
(d)
for ejectment; or
(e)
for any two or more such matters as are described in paragraph (a),
(b),
(c)
or
(d);
in addition to costs.
2.
An application
in terms of subrule (1) shall be made on not less than seven days'
notice delivered not more than seven days after the date of the
defendant's appearance to defend,
and the plaintiff shall deliver with such notice —
(1)
if the claim is illiquid, a copy of an affidavit, made by himself or
by any other person who can swear positively to the facts —
(i)
verifying the cause of action and the amount claimed, if any; and
(ii)
stating that in his belief there is not a bona
fide
defence
to the action and that appearance has been entered solely for the
purpose of delay;
(2)
if the claim is liquid, a copy of the liquid document on which the
claim is founded.” emphasis added)
Therefore
in terms of the 1980 Magistrate's Court (Civil) Rules an
application for summary judgment could be made 'on not less than
seven days' notice delivered not more than seven days after the
date of the defendant's appearance to defend.
The
1980 Rules were repealed and replaced by Statutory Instrument 11 of
2019 which according to Order 1 r2 came into operation on 1 February
2019.
Order
15 r1 sub r(2) of the 2019 Rules which provides for applications for
summary judgment reads as follows:
“(2)
An application in terms of sub rule (1) shall
be made at any time before the holding of a pre-trial conference,
upon seven days' notice -” (emphasis added)
It
therefore follows that after the coming into force of the 2019 Rules,
summary judgment can be applied for at any time before the holding of
a pre-trial conference.
Sections
279 and 281 of the Urban Councils Act which the appellant relied on
for his submission that he was entitled to separate rates and water
bills provide as follows:
“279
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 other and with the
owner primarily liable.
4.
Any person referred to in subsection (3) who has paid any rate in
terms of that subsection may deduct from any rent payable by him to
the owner so much as was so paid by him to the council, and the
production of the receipts for the rates so paid shall be a discharge
for the amount so paid as payment of rent to the owner:
All
property within a council area shall be rateable by the council,
except property which is —Provided that an occupier of property who
has entered into an agreement whereby he has accepted liability for
payment of the rates due in respect of that property shall not be
entitled to make any deduction in terms of this subsection.
281
Legal proceedings for recovery of rates
No
legal proceedings for the recovery of rates shall be instituted
against any person referred to —
1.
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
2.
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.”
These
sections merely provide for who should pay Council's bills on
demand being made and the procedure to be followed when legal
proceedings are instituted.
WHETHER
THE APPLICATION FOR SUMMARY JUDGMENT WAS MADE IN TERMS OF THE RULES
The
judgments of the magistrate's court and the court a
quo
clearly explained that the 2019 Magistrates Court Rules came into
effect on 1 February 2019. Therefore when the respondent applied for
summary judgment on 16 May 2019 the 2019 Rules were the applicable
rules. It was then permissible to apply for summary judgment at any
time before the holding of a pre-trial conference.
The
appellant did not take heed. He remained fixated on the 1980 Rules,
which were no longer in force.
The
respondent's application for summary judgment was filed on 16 May
2019 long after the Magistrate's Court Rules 2019 had come into
force and a Pre-trial Conference had not been held. The use of the
2019 Rules justified the filing of the summary judgment application
on 16 May 2019 as they were the rules in force since 1 February 2019.
WHETHER
THE APPELLANT HAD A DEFENCE TO THE RESPONDENT'S CLAIM
As
regards the interpretation of ss279 and 281 of the Urban Council Act
the court a
quo
correctly held that they do not provide that the appellant should be
billed separately for rates and water. It further held that the bills
sent to the appellant had all the information he required for the
payment of his rates and water bills. The appellant therefore had no
bona
fide
defence to the respondent's claim. The court a
quo
therefore correctly upheld the granting of summary judgment by the
Magistrate's Court.
DISIPOSITION
The
appellant's appeal has no merit. The appellant has unfortunately
continued with vexatious litigation. The respondent is entitled to
costs at the legal practitioner and client scale.
The
appeal is dismissed with cost on the legal practitioner and client
scale.
GUVAVA
JA:
I agree
CHITAKUNYE
AJA:
I agree
Appellant
in person
James
Moyo-Majwabu and Nyoni,
respondent's legal practitioners
