Clarkpayne Investments (Pvt) Ltd v Tanaka Power (Pvt) Ltd

### Preamble
1
HH 834-18
HC 10042/17
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CLARKPAYNE INVESTMENTS (PVT) LTD

versus

TANAKA POWER (PVT) LTD

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 24 May 2018

Opposed Application

I.A. Ahmed, for the applicant

No appearance for the respondent

ZHOU J: At the hearing of this matter on 24 May 2018 there was no appearance for the respondent.  The applicant through its legal practitioner, moved, that notwithstanding the default of the respondent the matter must be considered on its merits. Mr Ahmed who appeared for the applicant also submitted that the respondent was in any event barred for failing to file heads of argument timeously in terms of the rules. The certificate of service which was filed on 28 March 2018 shows that the applicant’s heads of argument were served upon the respondent on 28 March 2018 at 1159 hours. The respondent’s heads of argument were filed on 11 April 2018. On that account the respondent was not barred because the heads of argument were filed within a period less than the ten days required by the rules when regard is had to the fact that Friday 30 March and Monday 2 April 2018 were public holidays, being Good Friday and Easter Monday, respectively. Also, the term ended on 6 April 2018. This means that the 11th April when the respondent’s heads of argument were served was during the vacation.  In terms of r 238(2a) (i) a period during which the court is on vacation is not counted as part of the ten - day period for the filing of heads of argument. Accordingly, the respondent in casu is not barred.

I, however, proceeded to deal with the matter on the merits as requested by the applicant given that both parties have filed heads of argument. Having heard argument from the applicant’s legal practitioner I granted the relief sought in terms of the draft order.  The applicant has asked for the written reasons for the judgment. These are they.

This is an application for summary judgment. The facts upon which the application is founded are as follows. The applicant is the registered owner of an immovable property known as Certain Piece of Land Situate in the District of Salisbury Called Stand 7775 Salisbury Township measuring 3993 square metres. The property was purchased by the applicant at a sale in execution which was conducted by the Sheriff.  The property was duly registered in the name of the applicant as per the Deed of Transfer Number 0003858/2017. Following the transfer of the property into its name the applicant instituted proceedings by way of summons for the ejectment of the respondent and all persons claiming occupation through it from the property and costs of suit on the basis that the respondent was in occupation of the property without the consent of the applicant. The respondent entered appearance to defend and filed a plea. The applicant in turn filed an application for summary judgment which the respondent opposed. Both parties filed heads of argument hence the court was able to consider the matter on its merits notwithstanding the default of the respondent.

Summary judgment is allowed where the plaintiff’s case is unanswerable and there is no justification for putting the plaintiff to the unnecessary expense of a trial. The defendant must establish a legal defence which is bona fide in order to successfully oppose an application for summary judgment, Niri v Coleman & Ors 2002 (2) ZLR 580(H). Authorities acknowledge the drastic and extraordinary nature of this remedy hence the requirement for the plaintiff’s case to be unassailable before summary judgment may be granted.  In the case of Jena v Nechipote 1986 (1) ZLR 29(SC), it was held that all that a defendant must show in order forestall the granting of summary judgment 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 summary judgment is granted”. It is trite that the defence raised must be valid at law and not inherently unconvincing.

In its plea the respondent takes a “point in limine” that the Sheriff of the High Court ought to have been cited.  Clearly that point is without merit as the Sheriff has no interest in the eviction proceedings.  His mandate ended when he transferred the property into the name of the applicant. There is no relief which is being sought against the Sheriff in the summons.  In paragraph 2 of the plea the respondent makes the startling claim that he “is the rightful owner” of the property from which his eviction is being sought. Ownership in immovable property is constituted by a Deed of Transfer. The same claim is repeated in paragraphs 7, 8.1, 11. The deed of transfer produced records the applicant as the owner of the property. That deed has not been set aside.  Clearly, therefore, the respondent’s defence which is predicated upon a claim to ownership of the property is bad at law.

Costs in this case were awarded on the attorney-client scale against the respondent and its legal practitioners de bonis propriis. The special order of costs and the award of costs against the legal practitioners are justified by the vexatiousness of the defences raised by the respondent.  The defence is an unacceptable abuse of the procedures of this court, see Nyandoro v Sithole & Ors 1999 (2) ZLR 353(H) at 357; Matamisa v Mutare City Council & Anor 1998 (2) ZLR zlr 439(S); Doelcam (Pvt) Ltd v Pichanick & Ors 1999 (1) ZLR 390(H). It is unacceptable for a legal practitioner to advance on behalf of a client a defence which is groundless at law. In this case the repeated claim that the respondent “is the owner of the property” made in the face of a deed of transfer which shows who the owner of the property is clearly amounts to abuse of procedures of court. If the respondent is challenging the passing of title to the applicant, that is clearly a separate matter which should be pursued separately. The separate proceedings do not create real right which would entitle the respondent to remain in occupation of the property without the authority of the applicant. Any lawyer would readily understand this position of the law.

It is for the above reasons that relief was granted in terms of the draft order.

Ahmed & Ziyambi, applicant’s legal practitioners

Donsa-Nkomo & Mutangi Legal Practice, respondent’s legal practitioners