Order
10 Rule 64 of the High Court Rules, 1971 (Rule 64) provides as
follows:
“(1)
Where the defendant has entered appearance to a summons, the
plaintiff may 'at any time before a pre-trial conference is held'
make a court application in terms of this rule for the court to enter
summary judgment for what is claimed in the summons and costs.”
This
application for summary judgment is premised on the above rule and
the applicant prays for the following order:-
“Summary
judgment with costs be and is hereby granted in favour of the
applicant against the respondent in the sum of US$13,145=98 together
with interest on that sum at the prescribed rate reckoned from the
date of service of summons to date of payment in full, plus
collection commission.”
The
relief sought is in line with the claim in the summons issued on 20
January 2010 and served on the respondent on 28 January 2010. The
respondent entered appearance on 11 February 2010, and, convinced
that the defendant had no bona
fide
defence to his claim, the applicant filed this application on 2 March
2010.
The
applicant's declaration reveals that the claim is based on an
acknowledgement of debt signed by the respondent on 9 September 2009.
The acknowledgment of debt reads as follows:-
“I,
Joseph V Sithole, ID number 70-041987T13, of 66 McChlery Avenue,
Eastlea, Harare, hereby acknowledge indebtedness of US$11,000= as
capital to Steven Hudson of Skinners Autobody Repairs, Manchester
Road, Southerton, Harare. Over and above that, an interest accrual of
US$2,145=98 was levied as at October 2009.
I
undertake to liquidate part of the said by October 15, 2009 with the
balance having to be negotiated for a future date to settle.
This
acknowledgment of debt is covered under the jurisdiction and laws of
Zimbabwe.”
The
claim in the summons states that the amount claimed is in respect of
“services rendered to the respondent by the applicant at the
respondent's special instance and request”. The founding
affidavit and the acknowledgement of debt are, however, silent on how
the debt originated. However, in his opposing affidavit the
respondent acknowledges the rendering of services in the following
terms:-
“The
applicant runs a panel beating workshop. I had a vehicle, a Mercedes
Benz, which was involved in an accident. The applicant and I agreed
that the applicant would effect the repairs. The applicant even
advised that he was going to import some of the materials to be used
on effecting repairs on my vehicle. However, the applicant never
showed me the receipts and the invoices to substantiate his claim.”
The
above is in line with the wording of the claim in the summons.
The
respondent then declares that he refused to honour the
acknowledgement of debt because the amount claimed was not correct.
He goes on to say he had only signed the document under duress
because the applicant:-
“1….,
caused a scene at my workplace in barricading my vehicle so that I
could not go home.
2….,
declined to get out of my office to an extend (sic)
that I signed the 'paper' to let the applicant get out off (sic)
my offices.”
The
respondent also says:-
“I
further paid the applicant Rands equivalent to US$1000=. I also gave
the applicant a sizeable volume of fuel which will meaningfully
reduce the amount owned to the applicant.”
The
above, in my view, sums up the respondent's defence.
The
applicant submitted that there was no evidence of threats or
intimidation to show that the respondent signed the acknowledgement
of debt under duress. There was nothing to show for the respondent's
reaction to the alleged coercion. Furthermore, there was also no
evidence of payment of US$1000= and fuel.
Apart
from arguing that he was not issued with receipts in respect of
imported spares the respondent does not deny that he owes the
applicant some money for services rendered. That money, according to
the applicant, is what appears in the summons. The appearance to
defend was, in the view of the applicant, entered for delaying
purposes.
On
his part, the respondent argued that there were triable issues
because there was a dispute relating to the issue of whether or not
the applicant imported the spare parts for the respondent's
vehicle. Furthermore, the respondent had raised the defence of
duress.
Relying
on Hughes
v Lotleit
1985 (2) ZLR 179 HC, the respondent correctly quoted the following:-
“Summary
judgment will only be granted where the plaintiff has made out a
cause of action to which the defendant has no possible defence.”
The
defendant went on to quote from Hughes
v Donenek Investments (Pvt) Ltd
1998 (2) ZLR (H) where it was said:-
“All
the defendant has to establish in order to succeed in having an
application for summary judgment dismissed is that “there
is a mere possibility of success;”
he has a plausible case; there is a real possibility that an
injustice may be done if summary judgment is granted.”
I
agree with the above.
Given
the import of Rule 64 and the principles of law enunciated in the
above two cases, what remains for me to do is to determine whether or
not there is a possible defence to the applicant's claim for me to
deny him the relief he seeks.
A
proper reading of the papers before me leads to the conclusion that
there is nothing to disable me from granting the applicant the relief
he seeks. This application conforms with the requirements of Rule 64.
The
respondent has, without convincing reasons, tried to disown the
acknowledgement of debt. The alleged coercion/duress would, in my
view, have called for the need, on the part of the respondent, to
report the matter to the police immediately as the alleged act of the
applicant would amount to extortion. There is nothing in the papers
before me to show that the respondent took any steps to ensure that
the truth (i.e. alleged coercion) about the acknowledgement of debt
signed on 9 September 2009 was known. This application was filed on 2
March 2010 and only on 8 March 2010 did the respondent then find it
necessary to tell the world that on 9 September 2009 he was forced to
sign a “piece of paper”.
Furthermore,
the respondent, without proof, then goes on to say he paid US$1000=
and gave the applicant a sizeable volume of fuel. There are no
receipts and dates mentioned for those transactions.
A
rejection of the alleged defence by the respondent leads me to
accepting the applicant's case as presented. In so deciding, I also
derive comfort from the fact that the respondent accepts that he owes
the applicant some money for services rendered.
In
dealing with an application for summary judgment in Central
Africa Building Society v Ephison Simbarashe Ndahwi
HH18-10,
MAKARAU J…, observed:-
“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 the plaintiff's wishing to use the
speedy procedure of summary judgment must bring themselves squarely
within the provisions of the rules.”
I
fully agree that the above clearly sets out the principles to be
considered in granting summary judgment.
Having
taken the outlined principles into consideration, I am, in
casu,
fully convinced that the respondent has filed an appearance to defend
merely to delay the inevitable. My finding, therefore, on a balance
of probabilities, is that the respondent has no bona
fide
defence to the action. The claim is accepted but the respondent
merely wants to avoid
payment.
There is therefore no reason for me to deny the applicant the relief
he has prayed for.
It
is accordingly ordered as follows:-
1.
That summary judgment with costs be and is hereby granted in favour
of the applicant against the respondent in the sum of US$13,145=98
together with interest on that sum at the prescribed rate from 28
January 2010 to date of payment in full; and
2.
That the respondent shall pay costs of suit.
