Application
for Summary Judgment
TAKUVA
J: This
is an application for summary judgment in terms of Order 10 Rule 64
of the High Court Rules, 1971.
The
background facts are as follows:
Applicant,
plaintiff at the time, issued summons under HC880/09 against one
Richard Dunduza (1st
defendant)
now deceased and one Tafara Chikati (2nd
defendant),
seeking payment from defendants the sum of ZAR351,784 (Three hundred
and fifty one thousand seven hundred and eighty four South African
Rands). Applicant subsequently obtained the following order in his
favour:
“1.
The first defendant shall pay the sum of ZAR351,784,00 (Three hundred
and fifty one thousand seven hundred and eighty four South African
Rands) to the plaintiff.
2.
The first defendant shall pay interest on the above sum at the
prescribed rate from 1st
March 2009 to date of full and final payment.
3.
The first defendant shall pay costs of suit on an attorney/client
scale”.
This
order was granted on 29 April 2010 and shortly thereafter on 7 May
2010, applicant obtained a writ of execution against 1st
defendant one Richard Dunduza's immovable property being stand
number 9469 Nkulumane, Bulawayo for the recovery of the sum mentioned
above.
The
Deputy Sheriff has mandated Bulawayo Real Estate to sell the property
by private treaty. The property was advertised and interested parties
were referred to view the property.
Respondent
who is the spouse of Richard Dunduza and is in occupation of the
house has been frustrating efforts by prospective buyers to view the
property. Prospective buyers were insulted and threatened with
violence by respondent and those occupying the property through her.
Applicant,
having failed to obtain satisfaction from the order obtained under
HC880/09 issued summons for eviction of respondent under HC1841/13.
Respondent entered appearance to defend and applicant then filed this
application.
As
pointed out in my introductory remarks the basis of the application
is Order 10 Rule 64 which states:
“64.
Application
for summary judgment
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.”
Applicant
in
casu
had contended that respondent has no bona
fide
defence in case number HC1841/13 in that the order under HC880/09 is
a lawful order granted on the merits of the matter.
The
issue therefore is whether or not the respondent has a bona
fide
defence – see Van
Hoogtraten
v James
& Ors
2010 (1) ZLR 608 (H); Jena
v Nechipote
1986 (1) ZLR 29 (S) and Mapuranyanga
v Sheriff
of the High Court & Ors
2003 (1) ZLR 235 (S).
A
reading of respondent's notice of opposition reveals the following
defences:
1.
that her husband was very ill at the time;
2.
that there is no proof that her late husband Richard Dunduza stole
applicant's money because applicant issued summons before the
criminal matter had been finalised in court;
3.
that the property in question is part of the deceased estate and
therefore any claims should be made via the Master of the High Court.
4.
that she is a widow who is struggling to raise her 4 children.
In
my view, none of the proposed defences has any merit:
(i)
The first is devoid of merit because there is no indication on the
papers that Richard Dunduza was not properly served in terms of the
rules of this court.
(ii)
As regards the second, it is trite that the institution of criminal
proceedings does not preclude a party from instituting a civil action
against the same party in the criminal proceedings – see section 4
of the Criminal Procedure and Evidence Act (Chapter 9:07) which
provides that:
“Neither
a conviction no acquittal following any prosecution shall be a bar to
a civil action for damages at the instance of any person who may have
suffered any injury from the commission of any offence.”
(iii)
The 3rd
proposed line of defence lacks bona
fides
in that the property was attached before respondent's husband died.
Therefore it is clearly excluded from the husband's estate.
(iv)
Finally, respondent's hardship may not be used as a defence to a
lawful execution of an order of court. Perhaps the respondent could
resort to the provisions of Rule 348A of this court's rules to try
and stop the sale of a dwelling.
For
these reasons I find that respondent has no bona
fide
defence to the applicant's claim for eviction. She has not raised
any triable issues.
Accordingly,
it is ordered that:
1.
Summary judgment be and is hereby granted to applicant in case number
HC1841/13 in respect of the eviction of the respondent and all those
claiming occupation through her from the property known as number
9469 Nkulumane, Bulawayo.
2.
There shall be no order as to costs.
Lazarus
& Sarif,
applicant's legal practitioners
