AFRICAN CENTURY LTD v PLUMTREE SALES & MARKETING DISTRIBUTORS (PVT) LTD & ANOR

HIGH COURT, HARARE

[Opposed Application HH 65-16]

January 12 and 20, 2016

MUREMBA J

Practice and procedure  –  Summary judgment  –  Effect on application of a claim requiring amendment.

Held, that in an application for summary judgment the applicant’s claim should be clear and unassailable. Once the applicant seeks to make an amendment in order to properly advance its cause, the application should not be granted because summary judgment is a drastic relief that denies the respondents the benefits of the fundamental principle of the audi alteram partem rule. Once the applicant fails to discharge its onus that is the end of the matter, there is no need to look at whether the respondent’s defence is bona fide.

Cases cited:

Central Africa Building Society v Ndahwi 2010 (1) ZLR 91 (H), referred to

Nedlaw Investments & Trust Corp Ltd v Zimbabwe Development Bank SC 5-00 (unreported), referred to

Van Hoogstraten v James & Ors 2010 (2) ZLR 608 (H), referred to

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 10 r 67 (a)

H Mutasa, for the applicant

M Hogwe, for the respondents

MUREMBA J:

This is an application for summary judgment for the payment of US$ 85 935.05, interest at the rate of 35 per cent per annum on the stated amount and delivery of certain motor vehicles by the respondents. The claim is pursuant to a breach of a lease agreement which the applicant and the first respondent entered into and in which the second respondent signed as a guarantor. The application was filed after the respondents had filed an appearance to defend. The applicant averred that the respondents have no bona fide defence and that they entered an appearance to defend simply to delay the relief that it is seeking.

In opposing the application the respondents raised a point in limine to the effect that the deponent to the applicant’s founding affidavit did not provide authority to show that the applicant authorised him to depose to the affidavit on its behalf. However, at the hearing Mr Hogwe indicated that the respondents were no longer pursuing the point in limine. It was a noble decision to abandon the point in limine because even if he had pursued it I would have dismissed it.

On the merits the respondents opposed the application on the grounds that the account balance or the amount of US$ 85 935.05 is in dispute. They stated that according to the statement of account which was issued by the applicant as at 31 December 2014, which statement the respondents attached to their opposing affidavit as annexure B, the arrears stood at US$ 54 127.74 yet the summons was issued on 3 December 2014 claiming US$ 85 935.05. The respondents further averred that it was not correct that the first respondent was in arrears. They said that the payments were up to date when the summons was issued on 3 December 2014. They said that an email which came from the applicant shows that as at 14 January 2015 the first respondent was up to date with its payments as it stated that the next instalment was due on 15 January 2015 and made no mention of any arrears that were outstanding.

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