DISTRIBUTABLE (42)

Judgment No. SC 65/04

Civil Appeal No. 198/01

SUSAN CHIPO VERA v MITSUI & COMPANY LIMITED

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA  JA & ZIYAMBI JA

HARARE, JULY 22, 2004

C Selemani, for the appellant

J B Colegrave, for the respondent

ZIYAMBI JA: On 3 July 2001 the High Court granted summary judgment against the appellant and one Mashashi Yano in the following terms:

“1. That the first respondent (Mashashi Yano) and the second respondent (the appellant) and all those holding through them are to be evicted from the premises situate at 7 Ridgeway North, Highlands, Harare.

2. That as against the first respondent judgment is granted in the sum of $204 055.87; and

3. That is (as?) against the first respondent and the second respondent jointly and severally, the one paying the other to be absolved, costs of suit.”

The appellant now appeals against the judgment on the grounds that the learned judge erred in finding that no prima facie defence had been established by the appellant; and, further, that the learned judge erred in not holding that the pleadings reflected a serious dispute of fact which could not be resolved on the papers and thus could not be disposed of in summary judgment proceedings.

The background to this matter is that the respondent, in May 1997, entered an oral agreement with one Mashashi Yano (“Yano”) for the sale of the respondent’s property, being 7 Ridgeway North, Highlands, Harare (“the property”). The sale price was 20 million yen, based upon a valuation in local currency of $1.7 million, and was payable in the American equivalent of 20 million yen, being US$155 000.00. The purchase price was payable in foreign currency and the sale was therefore conditional upon Exchange Control approval of the immediate remittability of the purchase price to Japan.

Application was duly made to the Reserve Bank by the respondent for such approval and, since it was anticipated that there would be a considerable lapse of time before a reply could be obtained from the Reserve Bank, the respondent agreed that Yano could occupy the property on condition that he undertook to pay the charges for water, electricity and telephone. Yano commenced occupation of the property in July 1997.

On 8 September 1997 the respondent learned that its application for approval had not been successful. The condition precedent for the sale could therefore not be satisfied and the agreement accordingly lapsed. Yano expressed the wish to purchase the property, but it soon became apparent that he was unable to raise the purchase price and he agreed to vacate the property on 6 July 1998. He did not vacate on that date and, despite repeated undertakings to vacate the property, was still in occupation thereof on 15 December 1998.

On that date, the respondent wrote to him, demanding that he vacate the premises and copied the letter to the appellant, who was then living on the premises apparently by invitation of Yano. Still the appellant and Yano did not vacate the property. This caused the respondent, on 12 February 1999, to write a letter, demanding that Yano immediately evict the appellant from the property and a further letter to the appellant requesting that she vacate the property.

Needless to say, these requests fell on deaf ears and, vexed by this state of affairs, the respondent issued summons for the eviction of Yano and the appellant. The appellant having entered an appearance to defend, summary judgment was applied for and obtained by the respondent.

Subrule (1) of Rule 64 of the High Court Rules, 1971 (“the Rules”) 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.”

By virtue of subrule (1) of Rule 66 the appellant was required to satisfy the Court that she had a “good prima facie defence”. Subrule (1) of Rule 66 provides:

“(1) Upon the hearing of an application for judgment under rule 64 the defendant may –

(a) give security to the satisfaction of the registrar to satisfy any judgment which may be given against him in the action; or

(b) satisfy the court by affidavit or with the leave of the court by oral evidence of himself or any other person who can swear positively to the facts that he has a good prima facie defence to the action.”

Now, the courts have always regarded summary judgment as a drastic remedy to which they will not readily resort. See Davis v Terry 1957 (4) SA 98 (SR); Jena v Nechipote 1986 (1) ZLR 29 (SC). Thus it has been said that the objective of the rule permitting this procedure is:

“… to enable a plaintiff with a clear case to obtain swift enforcement of his claim against a defendant who has no real defence to that claim. The courts have in innumerable decisions stressed the fact that the remedy provided by this rule is an extraordinary one which is ‘very stringent’ in that it closes the door to the defendant, and which will thus be accorded only to a plaintiff who has, in effect, an unanswerable case”.

See Herbstein & Van Winsen The Civil Practice Of The Supreme Court Of South Africa 4 ed at pp 434-435.

Accordingly it has been held that all that a defendant in such an application needs to do in order to have an application for summary judgment dismissed is to establish 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”. See Jena v Nechipote supra at 30 D-E.

However, sight must not be lost of two factors: Firstly, that in applications for summary judgment the onus of establishing a bona fide defence and a “fairly triable and arguable issue” rests on the defendant, in this case the appellant. See Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC-139-86. And, secondly, that the rule is open to abuse by many a defendant seeking to delay judgment against him and thereby, so to speak, postpone the evil day. See Beresford Land Plan (Pvt) Ltd v Urquhart 1975 (1) RLR 260 at 265 D-G.

It is for the above reasons that, although a defendant is not required to “deal exhaustively with the facts and the evidence relied on to substantiate them”, he must at least disclose his defence and the material facts on which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence. See Davis v Terry supra.

Yano, who was the first respondent in the proceedings in the court a quo, did not oppose the application for summary judgment.

The defence advanced by the appellant in her opposing affidavit is that the oral agreement of sale between Yano and the respondent was negotiated by Yano on her behalf and that Yano was accordingly her agent. She claimed that, in terms of the agreement, the purchase price of the property was $1 700 000.00; the purchaser would take up occupation of the property on 1 August 1997; the seller would be responsible for all repairs and maintenance; the purchase price would be paid once the respondent had obtained approval to remit the purchase price to Japan; and that the rentals for the property would be paid on transfer. Pursuant to this agreement she drew up a draft agreement, which she attached to her affidavit as ‘Annexure A’. Annexure A was not signed by the respondent, as a proper agreement was to be drafted once the Reserve Bank’s approval for the repatriation of the sale proceeds had been obtained. Annexure A is set out below:

“’DEED OF SALE’

This agreement entered into by Mitsui & Co hereinafter called the Seller/Landlord and Masashi Yano hereinafter called the Buyer/Tenant for the purchase of No. 7 Ridgeway North Highlands Harare, hereinafter called the Premises.

It is hereby agreed by the Seller

terms and conditions:

1. The purchase price of the premises is Z$ 1.7 million (one million seven hundred thousand dollars).

2. The buyer will pay rent of Z$10 000 (ten thousand dollars) per month (which) the Seller will credit towards the purchase price of the premises. In other words the amount paid by the Buyer to the Seller will be deducted off the purchase price.

3. The Buyer will pay the full amount of the purchase price within a reasonable period of time i.e. after Mitsui gets clearance from (the) Reserve Bank to remit the Zimbabwe Dollar amount to Japan.

4. The Buyer will move into the premises on the first of August 1997 (01/08/97).

5. It is understood that the Seller will be responsible for all repairs and maintenance of the premises during the rental period and before the final sales transaction is executed.

Thus done on this _________ day of ___________ 1997 BY

SELLER: BUYER:

FIRST WITNESS: FIRST WITNESS:

SECOND WITNESS: SECOND WITNESS:.”

It will be seen that, although the appellant claims to have drawn up the draft agreement, nowhere therein is her name mentioned. Nor is there any indication in the draft that Yano acted as her agent. Thus the allegation by the appellant that the draft agreement “clearly displays the fact that I was the purchaser” is demonstrably untrue.

The court a quo was alive to the law applicable in cases of this nature. The learned judge found that, while the appellant had raised a triable issue, her defence was not bona fide. This is not surprising. The draft agreement makes no reference whatsoever to the appellant; it purports to be between Yano and the respondent but is signed by neither. Indeed the respondent denies knowledge of its existence. Yano has not opposed the application for summary judgment and is not a party to this appeal. Although the appellant entered appearance to defend in May 2000, no plea had been filed by August 2000 when the application for summary judgment was filed. The learned judge concluded that the defence raised by the appellant was a recent fabrication and therefore not bona fide.

I can find no basis for interference with the conclusion reached by the learned judge. All the indications are that the appellant entered appearance to defend solely for purposes of delaying the respondent’s just claims.

It was for the above reasons that, at the end of the hearing, we dismissed the appeal with costs.

CHIDYAUSIKU  CJ: I agree.

SANDURA  JA: I agree.

Muzenda & Maganga, appellant's legal practitioners

Stumbles & Rowe, respondent's legal practitioners