After hearing argument in this matter, we allowed the
appeal and issued the order appearing at the end of this judgment. The
following are our reasons for so doing.
On 23 January 2012, the respondent (“the Messenger of
Court) issued summons in the High Court against the appellant, as first defendant,
and Manase & Manase, as second defendant, claiming payment of USD9,643=20
due and owing to it as well as interest calculated from 21 September 2011 to
date of final payment and costs.
The claim was set out in the declaration as follows:
“4. Sometime in September 2009, Mr Tavenhave, who is
currently practising with the 1st defendant as a partner but who
then was practicing under the employ of the 2nd Defendant as a
professional assistant, instructed the plaintiff to execute on some warrants
for ejectment and execution against movable property in respect of two matters,
namely;
4.1. Mervyn Susman Trust v Ethanasia Court Residents; and
4.2. Ramson (Pvt) Ltd v Edgars Stores (Pvt) Ltd.
5. The plaintiff raised invoices in respect of the services
rendered in the two matters as follows;
5.1. Mervyn Susman Trust v Ethanasia Court Residents -
invoiced USD15,532=20 against deposits of USD3,300= leaving an outstanding
balance of USD12,232=20.
5.2. Ramson (Pvt) Ltd v Edgars Stores (Pvt) Ltd – invoiced
USD6,093= against deposits of USD3,682= leaving an outstanding balance of USD2,411=.
5.3. The total outstanding therefore in respect of the two
matters was USD14,643=20.
6. Upon demand, the 1st defendant settled in
part only and paid USD5,000= thereby leaving an effective outstanding balance
of USD9,643=20 which amount is due and owing despite demand.
7. As instructions in respect of the above matters were issued
from the 2nd defendant, the 2nd defendant is liable for
settlement of the said outstanding amount.
8. Additionally, and in the alternative, the plaintiff was
advised that the practitioner who handled the matters left the practice of the
2nd defendant and now practices as a partner with the 1st
defendant, and that he took the matters in respect of which the claim arises
with him, the 1st defendant is also liable jointly and severally
with the 2nd defendant in respect of the said outstanding amount.
WHEREFORE, the plaintiff claims against the defendants
jointly and severally the one paying the other to be absolved;-
(a) Payment of USD9,643=20 due and owing the plaintiff.
(b) Interest on the aforesaid amount at the prescribed rate
calculated from the 21st of September 2011 to the date of full and
final payment both dates inclusive.
(c) Costs of suit.”
Both defendants entered appearance to defend.
On 15 February 2012, the claim against the second
defendant was withdrawn leaving the appellant as the only defendant.
Thereafter, on 28 February 2012, the respondent applied for summary judgment.
THE
APPLICATION FOR SUMMARY JUDGMENT
The respondent alleged that the claim was for services
rendered to the appellant for which the appellant had, despite demand, refused
to pay; that the appellant had no bona fide defence to the claim and had
entered appearance solely for purposes of delay; that the debt arose when Mr
Tavenhave was practicing as a legal practitioner with Manase & Manase; that
the appellant, in a letter dated 1 November 2011 had admitted liability to pay
the balance outstanding on the debt and was now estopped from denying
liability.
The letter read as follows:
“Dear Sir
RE: MERYVN
SUSMAN TRUST & RANSEN HOLDINGS (PVT) LTD - BALANCE $9,643=
Kindly be advised that our client is no longer resident in
Zimbabwe, and, as such, it is difficult to contact them, the last time they
were in Zimbabwe was when they paid that US$5,000=.
However, they advised us through the email that they will
be in the country on the 28th of November and promised to settle
your account as they have already shown commitment by paying the initial
deposit.
We heard that you are contemplating litigation, we urge you
to wait until then so to (sic) avoid wastage of resources and time as our
client is not denying liability.”
The appellant averred, in its defence, that it had never
engaged the services of the respondent in the matters involved and it had a
bona fide defence to the claim in that the events which led to the claim by the
respondent took place in 2009 before the appellant came into existence on 1
January 2011.
It alleged, further, that at the time the debt claimed
arose, Mr Tavenhave was working for Manase & Manase Legal Practitioners as
a Professional Assistant; that the respondent did not raise the issue until
three years had elapsed and then it sought to pursue the case against a totally
different entity altogether - one which had no involvement whatsoever in the
matter; that the respondent had sued the wrong defendant and that Mr Tavenhave
had not accepted liability for the debt but had merely tried to assist the
respondent in recovering what was due to him.
The argument advanced by the respondent found favour with
the learned Judge. He granted the order for summary judgment against which the
appellant has noted this appeal.
DETERMINATION
Summary judgment is a drastic remedy which will only be
granted where it is clear that the defendant has no bona fide defence and has
entered appearance to defend solely for purposes of delay. Because of the
drastic nature of the remedy, a court will not grant it if there is any
possibility that the defence raised on the papers might succeed. Thus, it has
been held that a mere possibility of success will suffice to avoid an order for
summary judgment and that:
“All that a defendant has to establish in order to succeed
in having an application for summary judgment 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 reasonable
possibility that an injustice may be done if summary judgment is granted."
These tests have been laid down in many cases, typical of which in this country
are Davis v Terry 1957 (4) SA 98 (SR); Rex v
E Rhodian Investments Trust (Pvt) Ltd 1957 (4) SA 631 (SR); Kassim
Brothers (Pvt) Ltd v Kassim & Anor 1964 (1) SA 651 (SR); Shingadia v
Shingadia 1966 (3) SA 24 (SR); Webb v Shell Zimbabwe (Pvt) Ltd 1982 (1) ZLR
102.”
See Jena v Nechipote 1986 (1) ZLR 29 (SC). See also
Kingstons Limited v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.
The defence raised in this matter is that the appellant is
not the firm which contracted with the respondent for services seeing it was
not seized with the matter at the time the debt was incurred because it only
came into existence sometime after the debt to the respondent was incurred.
This defence is certainly arguable bearing in mind the date
of commencement of the (appellant's) partnership vis a vis the dates when the
respondent was allegedly engaged to execute the judgment. Since the partnership was not then in
existence, it seems to me that the appellant raised a bona fide defence to the
respondent's claim, namely, that no cause of action was disclosed against it.
In any event, the respondent alleged, in paragraph 7 of the
Declaration that since instructions were given to him by Manase & Manase,
that firm was liable for the settlement of the outstanding amount and the
allegation in paragraph 8 of the Declaration, apart from displaying great
inelegance in pleading, does not advance the respondent's case against the
appellant…,.
Accordingly, the appellant clearly raised an arguable
defence and summary judgment ought not to have been granted.
Consequently, at the conclusion of submissions on appeal,
the following order was issued:-
1. The appeal is allowed with costs.
2. The judgment of the court a quo is set aside and
substituted with the following:
“(i) The application is dismissed and leave is
given to the defendant to defend the action.”
