Judgment No. 91/21

Civil Appeal No. SCB 82/20

DISTRIBUTABLE              (88)                          

ELPHAS     M     MAPHISA

v

CITY     OF     BULAWAYO

SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA & CHITAKUNYE AJA

BULAWAYO: 22 & 25 MARCH, 2021

Appellant in person

T. Dube, for the respondent

                   UCHENA JA:    This is an appeal against the whole judgment of the High Court Bulawayo dated 23 July 2020, which dismissed the appellant’s appeal against the decision of the Magistrate’s Court granting the respondent summary judgment against him.

BACKGROUND FACTS

       The appellant is the owner of a residential property known as number 18 Pingstone Road Kumalo within the City of Bulawayo. His property’s account number is 34452705. He, as is the norm, was billed for water and rates between August 2013 and November 2018. He did not pay his bills leading to an accumulated debt of US$4 601.50. He says he did not pay the bills because:

1. He wanted to be billed separately for water and rates citing s 281 of the Urban Councils Act [Chapter 29:15].
2. That he should not be billed in US dollars when that currency was not available; and
3. That the respondent had not disclosed the particulars of the Urban Councils Act under which the bill was based.

                    In terms of s 281 (1) of the Urban Councils Act the respondent sent a final letter of demand to the appellant on 16 March 2018. The appellant did not pay. As a result on 1 November 2018 the respondent issued summons against the appellant in the Magistrate’s Court. He still did not pay for the, reasons already explained above. On 13 November 2018 he entered an appearance to defend. Thereafter on 16 May 2019 the respondent applied for summary judgment.

                   After taking into consideration the changes which had taken place due to the coming into force of the Magistrate’s Court Rules 2019 the Magistrate’s Court granted the respondent’s application for summary judgment. It held that the appellant did not have a bona fide defence to the respondent’s claim and that he had entered appearance to defend for purposes of delaying the inevitable eventual payment of the respondent’s claim.

                   Aggrieved by the granting of summary judgment the appellant appealed to the court a quo. In his grounds of appeal he raised two issues that he had not been billed separately for rates and water, and that the application for summary judgment had been made more than 7 days after entry of his appearance to defend. The respondent opposed the appeal. On hearing the appeal the court a quo held that the application for summary judgment was made in terms of the rules and the appellant had no bona fide defence to the respondent’s claim. He dismissed the appeal with costs on the higher scale holding that the appeal marks vexatious conduct and an abuse of the process of court. Undeterred the appellant appealed to this Court on four grounds which raise the following issues:

1. Whether the application for summary judgment was made in terms of the rules.
2. Whether the appellant had a defence to the respondent’s claim.

SUBMISSIONS ON APPEAL.

                   The appellant who appeared in person submitted that:

1. He should have been billed separately for rates and water and
2. That the summary judgment granted by the Magistrate’s Court and was upheld by the court a quo was irregularly granted because according to the 1980 Rules summary judgment should be applied for within seven days after the defendant’s entry of appearance to defend.

                   In response Mr Dube for the respondent submitted that the Magistrate’s Court Rules 1980 were no longer applicable when summary judgment was applied for on 16 May 2019 as they had been replaced by the Magistrates’ Court Rules 2019 on 1 February 2019. On the issue of ss 279 and 281 of the Urban Councils Act he submitted that these sections do not entitle the appellant to be billed separately for rates and water but merely provide for the procedure to be followed by the respondent when suing for unpaid rates and water bills.

THE LAW.

                   The Magistrate’s Court (Civil) Rules 1980 were repealed and substituted by The Magistrate’s Court (Civil) Rules 2019. The Magistrates (Civil) Court Rules 2019 came into operation on 1 February 2019. Therefore from 1 February 2019 the 1980 Rules were no longer in use. The procedure to be followed was that provided in the Magistrate’s Court Rules 2019.

                   Order 15 Rule 1 and 2 of the Magistrates’s Court (Civil) Rules 1980 which provided for when an application for summary judgment could be made provided as follows:

“1. When application for summary judgment may be made

1. Where a defendant has entered an appearance to defend, the plaintiff, whether in convention or reconvention, may apply to the court for summary judgment on any claim in the summons which is only—

(a) on a liquid document; or

(b) for a liquidated amount in money; or

(c) for the delivery of specified movable property; or

(d) for ejectment; or

(e) for any two or more such matters as are described in paragraph (a), (b), (c)

       or (d); in addition to costs.

1. An application in terms of subrule (1) shall be made on not less than seven days’ notice delivered not more than seven days after the date of the defendant’s appearance to defend, and the plaintiff shall deliver with such notice—

1. if the claim is illiquid, a copy of an affidavit, made by himself or by any other

person who can swear positively to the facts—

1. verifying the cause of action and the amount  claimed, if any; and
2. stating that in his belief there is not a bona fide defence to the action and

that appearance has been entered solely for the purpose of delay;

1. if the claim is liquid, a copy of the liquid document on which the claim is

founded” (emphasis added)

                   Therefore in terms of the 1980 Magistrate’s Court (Civil) Rules an application for summary judgment could be made ‘on not less than seven days’ notice delivered not more than seven days after the date of the defendant’s appearance to defend.

                   The 1980 Rules were repealed and replaced by Statutory Instrument 11 of 2019 which according to Order 1 r 2 came into operation on 1 February 2019.

                   Order 15 r 1 sub r (2) of the 2019 Rules which provides for applications for summary judgment reads as follows:

“(2) An application in terms of sub rule (1) shall be made at any time before the holding

       of a pre-trial conference, upon seven days’ notice—“ (emphasis added)

                   It therefore follows that after the coming into force of the 2019 Rules, summary judgment can be applied for at any time before the holding of a pre-trial conference.

                   Sections 279 and 281 of the Urban Councils Act which the appellant relied on for his submission that he was entitled to separate rates and water bills provide as follows:

“279 Liability to pay rate

1. The person who is the owner of any property on the date on which any rate fixed and levied by the council becomes due and payable shall be primarily liable for that rate.
2. If, on the date on which a rate becomes due and payable, the owner primarily liable has failed to pay that rate, a demand in writing may be served on him requiring him to pay the amount stated therein within fourteen days of the service of the demand.
3. If the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2), then any person who at any time during the period in respect of which such rate was fixed and levied—

1. is the occupier of the property concerned shall, if a demand in writing is served on him by the council, be liable for such rate together with any other unpaid rates in respect of such property, not exceeding the amount of any rent in respect of such property due by him but not yet paid at the time of the demand and shall thereafter continue to pay such rents to the council until the amount of the unpaid rates has been paid off;
2. as agent or otherwise, receives any rent in respect of such property, shall, if a demand in writing is served on him by the council, be liable for such rate, together with any other unpaid rates in respect of that property, not exceeding the amount of any such rent paid to him subsequent to that demand, subject to the deduction by the agent of commission due to him for the collection of that rent.

1. The persons referred to in paragraphs (a) and (b) of subsection (3) shall be liable for the rates to the amount specified therein jointly and severally with each other and with the owner primarily liable.
2. Any person referred to in subsection (3) who has paid any rate in terms of that subsection may deduct from any rent payable by him to the owner so much as was so paid by him to the council, and the production of the receipts for the rates so paid shall be a discharge for the amount so paid as payment of rent to the owner:

All property within a council area shall be rateable by the council, except property which is—Provided that an occupier of property who has entered into an agreement whereby he has accepted liability for payment of the rates due in respect of that property shall not be entitled to make any deduction in terms of this subsection.

281 Legal proceedings for recovery of rates

No legal proceedings for the recovery of rates shall be instituted against any person referred to—

1.  in subsection (2) of section two hundred and seventy-nine unless the council has

complied with that subsection and the owner has failed within fourteen days to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein; or

1.   in subsection (3) of section two hundred and seventy-nine unless he has failed

within thirty days to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein, subject to the maximum amount provided for in that subsection.”

                   These sections merely provide for who should pay Council’s bills on demand being made and the procedure to be followed when legal proceedings are instituted.

WHETHER THE APPLICATION FOR SUMMARY JUDGMENT WAS MADE IN TERMS OF THE RULES.

                   The judgments of the magistrate’s court and the court a quo clearly explained that the 2019 Magistrates Court Rules came into effect on 1 February 2019. Therefore when the respondent applied for summary judgment on 16 May 2019 the 2019 Rules were the applicable rules. It was then permissible to apply for summary judgment at any time before the holding of a pre-trial conference. The appellant did not take heed. He remained fixated on the 1980 Rules, which were no longer in force.

                   The respondent’s application for summary judgment was filed on 16 May 2019 long after the Magistrate’s Court Rules 2019 had come into force and a Pre-trial Conference had not been held. The use of the 2019 Rules justified the filing of the summary judgment application on 16 May 2019 as they were the rules in force since 1 February 2019.

WHETHER THE APPELLANT HAD A DEFENCE TO THE RESPONDENT’S CLAIM.

                   As regards the interpretation of ss 279 and 281 of the Urban Council Act the court a quo correctly held that they do not provide that the appellant should be billed separately for rates and water. It further held that the bills sent to the appellant had all the information he required for the payment of his rates and water bills. The appellant therefore had no bona fide defence to the respondent’s claim. The court a quo therefore correctly upheld the granting of summary judgment by the Magistrate’s Court.

DISIPOSITION

                   The appellant’s appeal has no merit. The appellant has unfortunately continued with vexatious litigation. The respondent is entitled to costs at the legal practitioner and client scale.

                   The appeal is dismissed with cost on the legal practitioner and client scale.

                   GUVAVA JA:                                        I agree

       CHITAKUNYE AJA:                           I agree

Appellant in person.

James Moyo-Majwabu and Nyoni, respondent’s legal practitioners.