The
plaintiff issued summons against the defendant on 10 September 2009
claiming the following:
1.
Payment of the amount of US$52,579=51 with interest thereon
capitalized monthly at the rate of 12% per annum from 7 September
2009 to date of payment in full;
2.
Costs of suit on the scale between legal practitioner and client
together with collection charges.
3.
An order declaring the mortgaged property to be especially
executable.
In
its declaration, the plaintiff pleaded the cause of action between
the parties as a loan advanced to the defendant on 29
May
2009 in the sum of US$50,000=. It was allegedly a term of the loan
agreement that the full amount of the loan, together with interest
thereon, would become payable in full on or before 29 August 2009.
On
24 August, the defendant passed a mortgage bond over a certain piece
of land as security for the loan advanced to him by the plaintiff. It
was a specific term of the mortgage bond that the defendant would
repay the first installment agreed upon between the parties on or
before 7 September 2009. It was allegedly a further term of the
mortgage bond that in the event the defendant failed to pay the first
instalment on due date, the full amount of the loan, together with
interest thereon, would become due and payable. It was alleged, in
the declaration, that the defendant had failed to make the payment on
due date hence the issuance of the summons three days later.
The
defendant entered an appearance to defend the claim on 23 September
2009.
On
5 October 2009, the plaintiff filed this application for summary
judgment. To the application was attached an affidavit deposed to by
one Sinikiwe Elizabeth Mukondiwa (“Mukondiwa”), the plaintiff's
Back Office Operations Manager. In her affidavit, Mukondiwa deposes
that she is duly authorised to depose to the affidavit on behalf of
the plaintiff and that the facts deposed to in the affidavit are
within her personal knowledge.
Sinikiwe
Elizabeth Mukondiwa proceeds to state, boldly, and baldly in my view,
that she verifies the plaintiff's cause of action in the matter and
the amount claimed by the plaintiff. She however does not state how
the amount claimed is arrived at before she proceeds to observe that
the defendant has entered appearance to defend the matter solely for
the purposes of delay as it is her belief that he does not have a
bona fide defence to the claim.
In
the affidavit, Mukondiwa gives a history of the loan transaction
between the parties. She deposes that the defendant was obliged to
pay the first instalment on 1 July 2009 but failed to do so. She
further narrates how the defendant made three payments during the
month of July 2009 which, in her view, fell short of the demand made
by the plaintiff to the defendant. This led the plaintiff to claim
the full amount of the loan and the interest accrued thereon, she
concludes.
The
application for summary judgment was opposed.
In
opposing the application, the defendant alleged that the issuance of
summons in the matter was premature as the debt was not yet due and
payable. He further averred that the plaintiff did not give him
notice of its intention to foreclose on the mortgage bond and that
the amount of the claim was incorrectly stated as he borrowed
$50,000= and not the $52,579=51 that is being claimed.
At
the hearing of the matter, counsel for the applicant applied to amend
the plaintiff's summons by correcting the amounts that are stated
in paragraph 6 of the declaration. The effect of the amendment is to
increase the amount of interest that has accrued on the capital loan
from $579=51 to $2,579=51 and the amount of the total amount
claimable from the defendant from $52,058=93 to $52,579=51. In her
oral application for the amendment, she stated that the figures had
been incorrectly typed into the declaration.
The
application to amend the declaration at this stage in the proceedings
was opposed.
In
opposing the application, counsel for the respondent submitted that
it is incompetent to amend the pleadings in an application for
summary judgment proceedings as the amendment necessarily implies
that the plaintiff's claim, as stated in the declaration filed of
record, is incorrect.
Secondly,
I understood counsel for the respondent to be submitting that the
amendment, if granted, would need to be freshly verified by a person
who can swear positively to the facts for the summary judgment
application to proceed. The affidavit purportedly filed on behalf of
the plaintiff of record verified the incorrectly stated claim and
cannot be used to verify the amended claim as it predates the
amendment.
I
find merit in the submissions by counsel for the respondent.
In
my view, the general approach of this court, to the amendment of
pleadings generally, is well settled. The Court will endeavour to
permit the parties to a dispute to bring before it any issue upon
which they seek to rely to avoid the possibility of stifling, upon
technical grounds, an attempt by a party to bring up material facts
before the court. Amendments to pleadings are generally granted
unless there is some special reason to the contrary.
See
Middledorf
v Zipper
1947 (1) SA 545 (SR).
However,
summary judgment proceedings demand different considerations. This is
so because summary judgment, as a procedure, is extraordinary in that
it takes away from the defendant some of the safeguards that are
guaranteed by a full trial. It is a drastic remedy that is based on
the supposition that the plaintiff's claim is beyond impeachment on
any material basis and that the plaintiff is merely being held back
from getting judgment by the rigors of a full trial which are then
curtailed to his or her advantage. For the plaintiff to gain such an
unusual advantage over the defendant, he or she must meet certain
very stringent requirements as set out by the rules. It has thus been
held, time and again, that plaintiffs wishing to use the speedy
procedure of summary judgment must bring themselves squarely within
the provisions of the rules. See Scropton Trading (Pvt) Ltd v Kumalo
1998 (2) ZLR 313 (SC); Chiadzwa v Palkner 1991 (2) 33 (SC); and
Stanbic Bank Zimbabwe Ltd v Dickie & Anor 1998 (1) ZLR 205 (HC).
As
stated by GUBBAY CJ in Scropton Trading (Pvt) Ltd v Kumalo 1998 (2)
ZLR 313 (SC), one simply cannot ignore the requirements of Rule 64 of
the High Court
Rules 1971 or request the court to condone a departure from strict
observance of this rule. To do so would, in my view, to take away the
extraordinary nature of the procedure and also to further erode the
protection that defendants have to the right to be heard in full
before judgment is given against them. Applications for summary
judgment will then resemble all the other opposed applications where
the court is enjoined to take a robust view of the facts and condone
departures from the observance of the rules in the interests of doing
justice as between the parties.
The
nature of the procedure that is summary judgment, in my view, is
ample justification for the requirement that a plaintiff resorting to
summary judgment must have an unanswerable claim as pleaded in his or
her summons and declaration and as verified in the affidavit that
must be filed in terms of the rules.
Two
issues immediately present themselves from this requirement of the
law. Firstly, it appears to me that where the plaintiff's claim, as
pleaded in the summons or declaration, is erroneously stated or is
inaccurate for whatever reason and requires amendment, summary
judgment cannot be granted on that claim. This is so because the
incorrect claim is not beyond reproach.
Further,
it appears to me that axiomatically, an incorrectly stated claim is
not capable of verification unless the deponent to the verifying
affidavit is not telling the truth or is unaware of the facts giving
rise to the claim.
It
is my view that an incorrectly stated claim is not verifiable and
cannot thus be the basis of an application for summary judgment. It
cannot be amended for the procedure of summary judgment.
Where
the amount claimed in the summons differed from the amount verified
in the verifying affidavit, this court dismissed an application for
summary judgment. See Stenslunde & Co (Pvt) Ltd v Banwell
Engineers Ltd 1988 (2) ZLR 327 (H).
Thus,
one cannot rely on the amount of the claim in the verifying affidavit
as the correct amount for the purposes of granting of summary
judgment. The same amount must appear in both the pleadings and in
the verifying affidavit.
In
my view, one cannot even rely on those portions of the amount that
are not in dispute for the purposes of obtaining summary judgment and
discard those that are in doubt.
So
stringent are the requirements for summary judgment that without the
leave of the court, a supplementary affidavit further verifying the
claim cannot be filed. A supplementary affidavit can be filed for the
purposes of dealing with issues raised in the opposing affidavit that
have the effect of catching the plaintiff by surprise. The plaintiff
cannot have two bites at the cherry and must ensure that the
declaration and the verifying affidavit are unanswerable at the time
of filing.
In
casu,
the plaintiff wishes to amend its declaration before proceeding with
the application for summary judgment already filed of record. I have
a difficulty with us proceeding in this fashion.
Firstly,
the declaration, as filed of record, is clearly not without answer.
It contains an error that is patent and one which the plaintiff
itself realizes must be corrected before proceeding further.
Secondly, the verifying affidavit filed of record cannot be used to
verify the amounts of the amended claim. In my view, a fresh
affidavit will need to be filed, verifying the plaintiff's cause of
action as pleaded in the amendment.
While
I am not determining the application for summary judgment itself, it
appears to me that it is inadequate for a deponent to an affidavit
verifying the plaintiff's claim and amount claimed, if any, to
simply state boldly, and badly, that they verify the claim and the
amount claimed without giving details. Verifying the claim, in my
view, denotes more than restating the claim and amount claimed in the
same language employed in the pleadings. It requires, in the case
where an amount is claimed, to break down the amount, where
appropriate, and to show how the total amount of the claim is arrived
at, especially in matters where there is an accounting element.
In
my view, had the deponent to the verifying affidavit in this matter
correctly verified the claim and detailed how the amount of the claim
was arrived at, appropriating the payments already made by the
defendant to either capital or interest, the plaintiff would have
realized that the amount of the interest claimed in the summons was
understated and may have taken corrective steps much earlier.
In
the result, I make the following order:
The
application to amend the plaintiff's declaration is dismissed with
costs.
