Founding, Opposing, Supporting and Answering Affidavits re: Deponent, Representative Authority & Affidavit of Collegiality

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine.

WHETHER DEPONENT TO FOUNDING/SUPPORTING AFFIDAVIT HAS AUTHORITY TO DEPOSE TO IT OR ESTABLISHED KNOWLEDGE OF FACTS DEPOSED TO

An application for summary judgment is governed by Rule 64 of Order 10 of the High Court Rules 1971. The requirements for a supporting affidavit are captured in sub rule (2) which provides:

“(2) A court application in terms of subrule (1) shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action.”

In response to the respondent's contention, that, the deponent to the supporting affidavit filed by the applicant herein had no authority, the applicant relied on the case of African Banking Corporation of Zimbabwe Limited t/a BancABC v PWC Motors (Pvt) Ltd & 3 Others HH123-13.

In that case, MATHONSI J held as follows:

“I am aware that there is authority for demanding that a company official must produce proof of authority to represent the company in the form of a company resolution. However, it occurs to me, that, that form of proof is not necessary in every case as each case must be considered on its merits: Mall (Cape) (Pvt) Ltd v Merino Ko-Opraisie BPK 1957 (2) SA 345 (C). All the court is required to do is satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not the unauthorized person.

To my mind, the attachment of a resolution has been blown out of proportion and taken to ridiculous levels.

Where the deponent of an affidavit states that he has the authority of the company to represent it, there is no reason for the court to disbelieve him unless it is shown evidence to the contrary [but] where no such contrary evidence is produced the omission of a company resolution cannot be fatal to the application….,.”

I respectfully subscribe to my brother MATHONSI J's views expressed supra. I would add, that, that approach has now become the commonly applied one in this jurisdiction when dealing with the subject under discussion.

I, however, do not agree with counsel for the applicant, that, the application before me is supported by the case he cited. He must have read piece meal what was stated in that case.

I am persuaded by counsel for the respondent's pertinent observation, that, African Banking Corporation of Zimbabwe Limited t/a BancABC v PWC Motors (Pvt) Ltd & 3 Others HH123-13, which counsel for the applicant sought to rely on for his contention, is distinguishable in that, in casu, the deponent has not averred that she has the applicant's authority to depose to the supporting affidavit or to launch the application for summary judgment.

This can be gleaned from paragraph 1 of her supporting affidavit.

In the absence of corporate resolution an averment by Guta, that she has authority to depose to the supporting affidavit, was essential and its absence is fatal.

In the event, I will uphold the point in limine, hence, there is no application for summary judgment before the court.

The other prong of the point in limine, that the deponent did not establish knowledge of the facts, was not pursued. It therefore need not detain me.

Agency Law re: Acting For Another iro Power of Attorney, Resolutions, Proxy, Negotiorum Gestio, Conduct & Derivative Action

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine.

WHETHER DEPONENT TO FOUNDING/SUPPORTING AFFIDAVIT HAS AUTHORITY TO DEPOSE TO IT OR ESTABLISHED KNOWLEDGE OF FACTS DEPOSED TO

An application for summary judgment is governed by Rule 64 of Order 10 of the High Court Rules 1971. The requirements for a supporting affidavit are captured in sub rule (2) which provides:

“(2) A court application in terms of subrule (1) shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action.”

In response to the respondent's contention, that, the deponent to the supporting affidavit filed by the applicant herein had no authority, the applicant relied on the case of African Banking Corporation of Zimbabwe Limited t/a BancABC v PWC Motors (Pvt) Ltd & 3 Others HH123-13.

In that case, MATHONSI J held as follows:

“I am aware that there is authority for demanding that a company official must produce proof of authority to represent the company in the form of a company resolution. However, it occurs to me, that, that form of proof is not necessary in every case as each case must be considered on its merits: Mall (Cape) (Pvt) Ltd v Merino Ko-Opraisie BPK 1957 (2) SA 345 (C). All the court is required to do is satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not the unauthorized person.

To my mind, the attachment of a resolution has been blown out of proportion and taken to ridiculous levels.

Where the deponent of an affidavit states that he has the authority of the company to represent it, there is no reason for the court to disbelieve him unless it is shown evidence to the contrary [but] where no such contrary evidence is produced the omission of a company resolution cannot be fatal to the application….,.”

I respectfully subscribe to my brother MATHONSI J's views expressed supra. I would add, that, that approach has now become the commonly applied one in this jurisdiction when dealing with the subject under discussion.

I, however, do not agree with counsel for the applicant, that, the application before me is supported by the case he cited. He must have read piece meal what was stated in that case.

I am persuaded by counsel for the respondent's pertinent observation, that, African Banking Corporation of Zimbabwe Limited t/a BancABC v PWC Motors (Pvt) Ltd & 3 Others HH123-13, which counsel for the applicant sought to rely on for his contention, is distinguishable in that, in casu, the deponent has not averred that she has the applicant's authority to depose to the supporting affidavit or to launch the application for summary judgment.

This can be gleaned from paragraph 1 of her supporting affidavit.

In the absence of corporate resolution an averment by Guta, that she has authority to depose to the supporting affidavit, was essential and its absence is fatal.

In the event, I will uphold the point in limine, hence, there is no application for summary judgment before the court.

The other prong of the point in limine, that the deponent did not establish knowledge of the facts, was not pursued. It therefore need not detain me.

Debt Collection re: Collection Commission and the Simultaneous Claim of Collection Commission & Punitive Costs of Suit

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE RELIEF SOUGHT FOR COLLECTION COMMISSION IS COMPETENT

This relief is contained in paragraph 2 of the draft order.

The applicant, in its heads of argument, conceded, that, it is not entitled to collection commission. Accordingly, the applicant indicated that it was abandoning that claim.

The concession was properly taken in view of the case of Scotfin Ltd v Ngomahuru ex parte Law Society of Zimbabwe: In Re Scotfin Ltd v Ngomahuru 1998 (3) SA 466 (ZH) which outlawed recovery of both collection commission and attorney–client costs in the same claim unless the delinquent debtor had agreed to pay both charges in the main agreement and only in respect of trade debts and uncontested claims.

This point in limine had therefore been validly raised.

Pleadings re: Abandoned Pleadings

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE RELIEF SOUGHT FOR COLLECTION COMMISSION IS COMPETENT

This relief is contained in paragraph 2 of the draft order.

The applicant, in its heads of argument, conceded, that, it is not entitled to collection commission.

Accordingly, the applicant indicated that it was abandoning that claim.

Debt Interest re: Contractual, Statutory, Judgment, Penalty, Usury, Accrual of Interest and Economic Inflationary Trends

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.

Founding, Opposing, Supporting, Answering Affidavits re: Approach & Rule that a Case Stands or Falls on Founding Affidavit

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes....,.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i)...,.

(ii) The second, and more cogent, relates to the exact amount the respondent allegedly owes the applicant if account is had to annexure “A”.

The claim avers, that, the amount owed is for rates arrears in the sum of $86,927=90 from June 2012 up to June 2014.

However, a perusal of annexure “A” reveals that the applicant's computation of the amount claimed is effective from February 2009 up to July 2014.

Over and above that, ex facie annexure “A” it is apparent that the applicant factors in water levy, road levy, sewerage, solid waste, and the monthly interest of 6% in addition to the rates.

As correctly argued by the respondent, this brings into sharp focus the question of whether or not part of the claim has not prescribed and also the accuracy of the computation of the exact amount that is due.

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.

CLAIM DEFECTIVE FOR WANT OF COMPLIANCE WITH RULE 13(4) OF ORDER 3 OF THE HIGH COURT RULES 1971

Rule 13(4) of the High Court Rules provides as follows:

“(4) Subject to sub-rule (5), where the amount claimed includes capital and interest on the capital, the particulars endorsed on the summons in terms of subrule (1) shall state clearly –

(a) The capital amount claimed; and

(b) The total amount of interest claimed on the capital as at the date of the summons or as at an earlier date specified in the particulars; and

(c) Whether or not interest is claimed on the total amount of capital and interest referred to in paragraph (a) and (b), and, if not, the amount in respect of which any interest is claimed and the date which interest is to run.”

It is not disputed that the claim, as particularized in the summons, does offend against the provisions of Rule 13(4) of the High Court Rules quoted above.

The amount of interest claimed on the capital is not stated, and, also, the effective date from which interest is supposed to run.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i)...,.

(ii) The second, and more cogent, relates to the exact amount the respondent allegedly owes the applicant if account is had to annexure “A”.

The claim avers, that, the amount owed is for rates arrears in the sum of $86,927=90 from June 2012 up to June 2014.

However, a perusal of annexure “A” reveals that the applicant's computation of the amount claimed is effective from February 2009 up to July 2014.

Over and above that, ex facie annexure “A” it is apparent that the applicant factors in water levy, road levy, sewerage, solid waste, and the monthly interest of 6% in addition to the rates.

As correctly argued by the respondent, this brings into sharp focus the question of whether or not part of the claim has not prescribed and also the accuracy of the computation of the exact amount that is due.

Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.....,.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i) The first relates to the averment, that, via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the balance would be written off.

The respondent accepted the offer, the arrangement became binding between the parties, and that agreement has not expired.

It is not enough for the applicant to simply allege, in passing, that the respondent has not furnished such proof, as alleged, in an endeavour to dispute the allegation.

If the applicant could not have been aware of this allegation, at the time of filing the application, then, in terms of Rule 67(c) of the High Court Rules 1971 the applicant should have applied to supplement its affidavit with a further affidavit to cover that lacuna.

The fact it did not do so can safely be inferred to mean that the averment was not being disputed.

(ii) The second, and more cogent, relates to the exact amount the respondent allegedly owes the applicant if account is had to annexure “A”.

The claim avers, that, the amount owed is for rates arrears in the sum of $86,927=90 from June 2012 up to June 2014.

However, a perusal of annexure “A” reveals that the applicant's computation of the amount claimed is effective from February 2009 up to July 2014.

Over and above that, ex facie annexure “A” it is apparent that the applicant factors in water levy, road levy, sewerage, solid waste, and the monthly interest of 6% in addition to the rates.

As correctly argued by the respondent, this brings into sharp focus the question of whether or not part of the claim has not prescribed and also the accuracy of the computation of the exact amount that is due.

Given the forgoing material disputes of facts, it is quite clear, that, the respondent has a bona fide defence to the applicant's claim, and, in the result, the application for summary judgment is dismissed with costs.

Prevaricative or Inconsistent Evidence and Approbating and Reprobating a Course in Proceedings

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.

Debt re: Contractual and Judgment Debt iro Approach, Proof of Claim, Execution, Revalorization and Civil Imprisonment

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

CLAIM DEFECTIVE FOR WANT OF COMPLIANCE WITH RULE 13(4) OF ORDER 3 OF THE HIGH COURT RULES 1971

Rule 13(4) of the High Court Rules provides as follows:

“(4) Subject to sub-rule (5), where the amount claimed includes capital and interest on the capital, the particulars endorsed on the summons in terms of subrule (1) shall state clearly –

(a) The capital amount claimed; and

(b) The total amount of interest claimed on the capital as at the date of the summons or as at an earlier date specified in the particulars; and

(c) Whether or not interest is claimed on the total amount of capital and interest referred to in paragraph (a) and (b), and, if not, the amount in respect of which any interest is claimed and the date which interest is to run.”

It is not disputed that the claim, as particularized in the summons, does offend against the provisions of Rule 13(4) of the High Court Rules quoted above.

The amount of interest claimed on the capital is not stated, and, also, the effective date from which interest is supposed to run.

Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due....,.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i) The first relates to the averment, that, via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the balance would be written off.

The respondent accepted the offer, the arrangement became binding between the parties, and that agreement has not expired.

It is not enough for the applicant to simply allege, in passing, that the respondent has not furnished such proof, as alleged, in an endeavour to dispute the allegation.

If the applicant could not have been aware of this allegation, at the time of filing the application, then, in terms of Rule 67(c) of the High Court Rules 1971 the applicant should have applied to supplement its affidavit with a further affidavit to cover that lacuna.

The fact it did not do so can safely be inferred to mean that the averment was not being disputed.

Founding, Opposing, Supporting, Answering and Supplementary Affidavits re: Summary Judgment Proceedings

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due....,.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i) The first relates to the averment, that, via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the balance would be written off.

The respondent accepted the offer, the arrangement became binding between the parties, and that agreement has not expired.

It is not enough for the applicant to simply allege, in passing, that the respondent has not furnished such proof, as alleged, in an endeavour to dispute the allegation.

If the applicant could not have been aware of this allegation, at the time of filing the application, then, in terms of Rule 67(c) of the High Court Rules 1971 the applicant should have applied to supplement its affidavit with a further affidavit to cover that lacuna.

The fact it did not do so can safely be inferred to mean that the averment was not being disputed.

Summary Judgment: Clear and Unanswerable Claims re: Approach