1

      HB 122-15

                                                                                                                                          HC 690-14

NATIONAL RAILWAYS OF ZIMBABWE

CONTRIBUTORY PENSION FUND

Versus

SAFARI GIFT AND KITCHENWARE

And

SITHOKOZILE KATEMA

And

DENIS KATEMA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 22 OCTOBER 2014 & 11 JUNE 2015

Opposed application

C. Bhebhe for the applicant

K. Ncube for the respondents

            TAKUVA J:  This is an application for summary judgment in terms of O 10 R 64 (1) (2) which provides:

“(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.

(2)        A court application in terms of sub-rule (1) shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action.

            (3)        …

            (4)        …”

            The facts are as follows:

            Applicant is a fund duly registered in terms of the laws of Zimbabwe with limited liability.  On or about the 27^th October 2003, applicant entered into a lease agreement with 1^st respondent, whereby applicant leased its premises to respondent being shop 2 Pioneer House, 8^th Avenue/Fife Street, Bulawayo.  The agreement was reduced to writing and signed by the parties.  The agreement was extended and amended by several addendums on 28 February 2011, 9^th January 2013 and 30 September 2013 as shown by annexures “B”, “C” and “D”.

On 14 January 2014, applicant issued summons claiming that the respondent had breached the lease agreement.  Respondent entered an appearance to defend and applicant then filed this application arguing that the respondent has entered appearance to defend in order to delay the inevitable since it had no conceivable defence against the claim filed by the applicant.

In his founding affidavit, Simon Moyo a partner at Knight Frank the duly authorized agent of the applicant stated, “Respondent entered an appearance to defend knowing fully well that they have he has (sic) no bona fide defence to the claim.  It is apparent from annexure “H” being the statement of account that respondent is liable to applicant.”  The applicant’s claim as put in the summons is as follows:

1. Confirmation of the cancellation of the lease agreement between plaintiff and 1^st defendant.
2. An order directing 1^st defendant’s eviction from shop 2 Pioneer House, Fife Street/8^th Avenue, Bulawayo and all persons claiming title or occupation through it.
3. An order enjoining defendants jointly and severally to pay plaintiff, the one paying the other to be absolved, the following sums:

1. outstanding rentals in the sum of US$14 428,67
2. interest on the said outstanding sums calculated at 19.04% per annum from date of summons to date of full and final payment
3. hold over damages equivalent to the monthly rental of US$1 280,00 together with VAT thereon and operating costs incurred from 1^st January 2014 to the 1^st defendant’s eviction.

1. Costs of suit on attorney and client scale.”

Annexure H which is relied upon by the applicant shows “extracts from details of account number 20365.  It has a series of figures from September 2010 to February 2014.  There is a debit and credit column.  On the debit side, there are figure totaling US$13 444,26 while the total on the credit side is US$300,75. It also shows interest on overdue balance in the sum of             $1 866,76.  At the bottom the following comments appear:

“Respondent humbly requests applicant (sic) the following:

1.respondent was never told about DEBT RECT TRANSFER and account NUMBER 622.

2.Why the figures are inconsistent.  Other months there is nothing and in one month to as high as $1 553,16 in 02/2012.  These figures are not reflected in monthly Tax Invoices.

3.Why there are some ridiculous figures like 40.74 and $0.01 on CREDIT RECT TRANSFER in 02/2013 and 12/2013 respectively?

4.Why applicant is already debiting respondent $300,00 as legal fees before finalization of the matter.”

In its heads of argument, the applicant contended that:

“3.3     Respondents do not have a prima facie defence to applicant’s claim.  In a matter such as this one a bona fide defence is for the respondent to prove to the court that it has paid all rentals as and when due.  The respondent’s defence in this case is not bona fide as such proof has not been availed to the court in support of its notice of opposition see the case of Niri v Coleman & Ors 2002 (2) ZLR 580 (H)”.

            Further, applicant has also filed “details of account 20365 on pages 93 to 102 of the record.  These documents show the amounts that were debited and credited between November 2008 and February 2014 in respect of applicant’s account.  The amounts reflected on the debit column are varied.  The same applies to those on the credit side.  Also, these figures have no relationship with those shown on page 49 as the agreed rentals for the various periods.  Another set of figures appears on pages 84 – 92 of the record.  According to the applicant these figures show what has been paid and what is due.

            The respondents have opposed the application on the following grounds:

1. that this  matter is improperly before this court and ought to be referred to arbitration in terms of clause 35.1 which provides:

“where a dispute arises between the parties hereto in regard to the interpretation or application of this agreement or any matter relating to or arising from this agreement, either party shall be entitled (if the dispute has not been resolved within seven days of it having arisen) to refer the dispute for arbitration by a single independent arbitrator hereinafter referred to as “the Arbitrator”.

1. that the applicant unilaterally varied the terms of the contract despite the existence of a non-variation clause.
2. that despite the fact that the 2^nd and 3^rd respondents’ suretyship terminated by effluxion of time, applicant has sued them jointly and severally with the 1^st respondent.
3. that from the applicant’s documents it is clear that it is charging interest on VAT.
4. that respondents are entitled to receive a rent abatement in terms of clause 32.2.1 which provides:

“In the event however of the leased premises being only partially damaged by any of the occurrences aforesaid, this lease shall continue in full force and effect save that the Tenant shall be entitled to;

Receive an abatement of rent during the period which the leased premises may not be wholly fit for occupation …”  The basis of this defence is that on 14 February 2011 a vehicle plunged into the premises damaging 4 big front panels.  The damage took six months to fix and this constrained the smooth running of the 1^st respondent’s business as the front parts of the premises were partially open.  Further, in November 2011 one of the premises’ big glass panels was shattered by late night revellers and it is not yet repaired.  During rainy days, clients are subjected to rain and water mopping and tripping of electricity due to the rain.  For these reasons, respondents contended that they are entitled to an abatement of the rent.

1. that the 1^st respondent denies owing the amount demanded by the applicant for two main reasons, firstly, the applicant’s commercial manager Mr Simon Moyo used to visit the 1^st respondent’s premises every month in 2010 and would collect over and above the monthly rental without issuing receipts. When 1^st respondent queried that, demanding official receipts, they were refunded a sum of US$4 000,00 by Mr J.J. Moyo of Calderwood, Bryce Hendrie and Partners.  Secondly, a perusal of invoices sent to the 1^st respondent by applicant, it would be apparent that they present a thoroughly confusing picture in that from a zero balance in June 2013, one ends up with a figure of US$14 428 in January 2014.  This points to an error of calculation on the part of the applicant as there is no way the 1^st respondent would have accrued arrears of that much in less than a year.
2. that applicant has alleged that the arrears claimed date back as far as November 2008 when the country was using Zimbabwean dollars as the only legal tender.  Anyone who required to charge in forex had to have a special licence from the Reserve Bank.  The applicant’s claim for that period is in US dollars notwithstanding the fact that it had no such licence.

Respondents submitted that for these reasons they have plausible defences to the applicant’s claim and it cannot be said they entered an appearance to defend solely for purposes of delay.

In Jena v Nechipote 1986 (1) ZLR 29 (S) GCJ (as he then was) held 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 the summary judgment is granted.” (my emphasis)

            See also Stationery Box (Pvt) Ltd v NATCON (Pvt) Ltd & Anor 2010 (1) ZLR 227 (H) where MAKARAU JP (as she then was) remarked as follows at p 230 D – E,

“The test to be applied in summary judgment applications is clear and settled.  The defendant must allege facts which if he can succeed in establishing them at the trial would entitle him to succeed in his defence. Obviously implied in this test often overlooked by legal practitioners is that the defendant must raise a defence.  His facts must lead to and establish a defence that meets the claim squarely.  If the facts that he alleges fascinating as they maybe and which he may very well be able to prove at the trial of the matter do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgment ought to be granted.”

            In van Hoogstration v James & Ors 2010 (2) ZLR 608, MAKONI J stated;

“The summary judgment proceedure is a drastic remedy in which a plaintiff whose belief is that a defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.  It has far reaching consequences as it effectively denies the defendant the benefits of the fundamental principle of the audi alteram partem rule.  It can only be granted to the plaintiff when all proposed defences to the claim are clearly unarguable both in fact and in law.  The defendant does not have to establish his defence on the probabilities.  All he needs to do is to allege facts which disclose a defence.  These facts if pleaded and accepted at the trial must be sufficient to establish a defence”.

            Quite evidently, summary judgment ought to be granted where the facts alleged do not amount to a bona fide defence or where the applicant’s case is unanswerable or where it would not result in an injustice.

            In casu, it cannot be said by any stretch of the imagination that the foregoing facts raised by the respondents do not amount to a defence.  In my view, it is a defence at law that this matter ought to be referred to arbitration and is improperly before this court.  It is a defence that applicant unilaterally varied the terms of the contract despite the existence of a non-variation clause.  Further, it is a bona fide defence that the 2^nd and 3^rd respondents’ suretyship terminated by effluxion of time, and that the applicant is improperly charging interest on value added tax on a debt that has not been conclusively ascertained.

            Finally, I agree with Counsel for the respondents that, “the inclusion of 2^nd and 3^rd respondents in this matter was due to the scatter-gun approach adopted by the applicant in its desperate and futile bid to snatch a judgment whenever it can find it in its hapless fumbling for same in the darkness.”

            Clearly, the applicant’s case cannot be said to be unanswerable given the various triable issues and defences raised in the foregoing paragraphs.  Consequently, granting summary judgment would result in an injustice as the applicant has dismally failed to put up an unassailable case.  The respondents on the other hand have put across bona fide defences to the applicant’s claim.

            Therefore, the applicant has not made out a case for the relief it seeks.  In the result, the application is dismissed with costs.

Coghlan & Welsh applicant’s legal practitioners

Kossam Ncube & Partners respondent’s legal practitioners