M. Bhikwa Brothers (Private) Limited v Eaglerise Trading (Private) Limited t/a Eazibet and Bruce Taruvinga

### Preamble
1
HH 128-21
HC 5501/20
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M. BHIKWA BROTHERS (PRIVATE) LIMITED

versus

EAGLERISE TRADING (PRIVATE) LIMITED

t/a EAZIBET

and

BRUCE TARUVINGA

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 17 & 24 March 2021

SUMMARY JUDGMENT

B Ngwenya, for the applicant

N T Sithole with B Machekano, for the respondents

MANZUNZU J:  This is an opposed court application for summary judgment.

On 3 September 2020 the applicant instituted proceedings against the respondents by way of summons under case number HC 4806/20. The relationship between the applicant and respondents (the parties) in this case is regulated by a lease agreement signed on 25 January 2018. In the summons the applicant alleged certain breaches of the lease by the first respondent and seeks relief, inter alia, for the cancellation of the agreement, eviction and recovery of arrear rentals. The second respondent was joined as the second defendant because of his role as a surety to the 1st respondent. The respondents entered an appearance to defend the action on 18 September 2020 as a result of which the applicant filed this application on 29 September 2020 seeking summary judgment. As already alluded to, the application is opposed.

This application was brought in terms of rule 11 of the High Court (Commercial Division) Rules, 2020 which provide in sub rule (1) that; “Where the defendant has entered appearance to defend, the plaintiff may, within seven (7) days from the date of service of the appearance to defend, 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, provided that no application for summary judgment may be filed after seven (7) days from the date of service of appearance to defend.” Then sub rules (2) and (3) go further to say the court application shall be supported by an affidavit to verify the cause of action with averments that there is no bona fide defence to the action. Documents can be used to support the verification of the cause of action and the belief that there is no bona fide defence.

This means for an applicant to succeed he must aver facts which are unanswerable by the respondent; see  Pitchford Investmets (Pvt) Ltd v Muzariri 2005 (1) ZLR 1. The deponent to the founding affidavit is one Getrude Mutsinze the applicant’s property administrator. Her averments were largely common cause. After giving a historical back ground of the relationship of the parties she proceeded to state that the respondents breached the material terms of the lease agreement in their failure to meet payment of their rental obligations which fact she said was admitted by the respondents even under oath in the proceedings before the Magistrate’s court. Documents were attached in support of these averments. In the face of this evidence she said respondents have no bona fide defence to talk of and have entered appearance to defend as a mere dilatory tactic.

A respondent who is faced with an application for summary judgment must put forward a bona fide defence; see Superbake Bakeries v Rumtowers SC 74/14 which quoted with approval the remarks of   malaba J (as he then was)  in the case of Hales v Daverick Investments (Private) Limited 1998 (2) ZLR at 235 E-F that;

“Where a plaintiff applies for summary judgment against a defendant and the defendant raises a defence, the onus is on the defendant to satisfy the court that he has a good prima facie defence.”

Before I summarize the basis of respondents’ opposition to this application I wish to recite hereunder the prayer by the applicant in the summons;

“Wherefore, plaintiff prays for;

The cancellation of lease and the eviction of the defendants and all those claiming occupation through them from Number 54 Rezende Street, Harare on account of the breach of the lease agreement.

Payment of the arrear rentals in the sum of US$7900.00or equivalent local currency at the prevailing bank rate due from the 1st of April 2020 to the 1st of September 2020.

Payment of the sum of ZWL457 448.96  being arrear rentals and operating costs outstanding from the period dating before the 30th of September 2017 to date.

Holding over damages in the sum of US$1 650.00 or equivalent local currency at the prevailing bank rate per month from the 1st of October 2020 until eviction.

Costs of suit on an attorney-client scale and collection commission in terms of the Law Society By-laws.”

The second respondent deposed to an affidavit in opposing the application for summary judgment. He denied that the purpose of entering an appearance to defend was to delay the proceedings. However, in respect to the defence, the respondents stated in para 8 of the affidavit as follows;

“ (a) Respondents admit owing the sum of RTGS$457 448.00 to the applicant. However the respondents are claiming set off of those amounts for damage caused to the respondents’ business by the wrongful and unlawful disruption of the said parties’ business when the applicants wrongfully attempted to execute against its property using a warrant of execution that had expired.

(b) Regarding the sum of $7900.00 respondents admit owing the said amount to be due to the applicant. However the respondents claim set off of the amounts due of that amount to the extent shown hereunder. The set off arises out of the wrongful and unlawful disruption of the respondents’ business caused by applicant when it attempted to execute against the respondents’ property using an expired warrant of execution.”

It is clear from the respondents’ response that they do not deny that they breached the lease agreement in a material way by their failure to pay rent. Despite the admission they raise the defence of set off in which they intend to claim damages against applicant to the tune of US$12000.00.  They submitted in the written heads that; “Respondents admit owing the amounts of RTGS$457 448.00 and US$7900.00 respectively to applicant. However respondents claim set-off of that amount in the sum of United States dollars 12 000.00 which must be set –off against the said amount.”

Mr Ngwenya who appeared for the applicant was brief and to the point in his oral submissions. He said applicant’s case was made simpler by the admissions of liability made by the respondents. That culminated to the breach of the lease agreement thereby entitling the applicant to the relief sought in the absence of a bona fide defence. He then moved to the respondents’ defence, that of set off. He relied on the case of Golden Million Engineering (Pvt) Ltd v Mettalon Gold Zimbabwe (Pvt) Ltd HH 86/13 which held that; “For set-off to operate the defendant must be in a position to say ‘the plaintiff owes me a debt’ rather than ‘I have a claim against him’ The debt must be capable of easy and speedy proof.” This legal test was not contested by counsels for the respondents.

Mr Sithole when he took to the floor in his oral submissions conceded the defence of set off has no place in this case. He said the respondents must show a prima facie defence. He relied on the case of Stationery Box (Pvt) Ltd v Nateon (Pvt) Ltd & Anor 2010 (1) ZLR 227 (H). He said the respondents were self-actors at the time they drew out the pleadings. He pleaded with the court to condone them for their failure to appreciate the operations of the law. I hasten to mention that we hear of such pleas almost every time and again. This is because self-actors have the freedom to prepare and file papers with the courts. But unfortunately there are no separate rules for self-actors and for those legally represented. It has become a common practice that non-lawyers venture into the field of legally trained people and when the journey turns tough they ask to be rescued by those who are trained and authorized to practice law. This reminds me of the words of Mutema J in  erMukudu v Malete HB 22-14  when he stated; “ The practice of law is a preserve for lawyers.  Lay persons who do not subscribe to the maxim and attempt to practise law at their own peril venture through a legal minefield which, at the end of it, leaves them legally battered and bruised.  That is when they invoke the good sense to engage a lawyer to clean up their mess with the result that sometimes this is akin to shutting the stable door after the horse has long bolted.”

In an effort to win the court’s sympathy Mr Sithole abandoned the defence of set-off and shifted to the position that the respondents were raising a counter-claim against the applicant. They did not say so in their papers as they were specific that they relied on  set-off. He said the applicant failed to file an answering affidavit to deal with the issues relating to the defence raised by the respondents. In such failure, Mr Sithole urged the court to the proposition that what is not denied in the affidavit must be taken as admitted. Mr Ngwenya was quick to respond that there was no need for an answering affidavit because the respondents had raised the defence of set-off which was to be determined as a point of law. Further that the point could be dealt with in argument as has been done. I agree with that position.

The issue of a counterclaim was introduced in oral submissions as a shift from what was on the papers. It was not pleaded and has no roots to stand on. The duty on the respondents was aptly summarised by Ziyambi JA (as she then was) in Kingstons Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) at 458 that; “Not every defence raised by a defendant will succeed in defeating a plaintiff’s claim for summary judgment. Thus what the defendant must do is to raise a bona fide defence - a plausible case - with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which, if established, would entitle him to succeed. See Jena v Nechipote 1986 (1) ZLR 29 (SC); Xavier Francis Mbayiwa v Eastern Highlands Motel (Pvt) Limited S-139-86; Joan Spencer Rex v Rhodian Investments Trust (Private) Limited 1957 R & N 723.”

The respondents in my view have not passed this test. The applicant has established that its claim is clear both in fact and in law save the prayer for holding over damages which cannot be summarily granted in the absence of evidence to substantiate it.

Applicant has asked for costs on a higher scale given the attitude taken by the respondents in contesting the application to its very end despite the shortcomings in their opposing case raised in the applicant’s heads. Respondents resisted costs on a higher scale and again sought refuge in that the initial papers were drawn by a self-actor. Issue of costs is within the discretion of the court. Punitive costs is not something which the courts will readily grant unless it has been shown that such costs are justified in the circumstance of such case. What we normally get is usually some brief submissions on the aspect.   Our courts have more or less followed the guide set in Nel v Waterberg Landbouwers Ko-operative Vereeniging1946 AD 597 at 607 where his Lordship tindall JA stated,

“The true explanation of awards of attorney and client costs not authorised by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case considers it just, by means of such an order, to ensure more effectively than it can do by means of a judgment for party to party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation.”

In casu, I find no compelling reasons to impose costs on a higher scale more so that the applicant has not succeeded in toto. The issue of holding over damages cannot be part of summary judgment. There were no submissions advanced to support the issue of interest and collection commission being prayed for in the draft order.

Disposition:

IT IS ORDERED THAT:

Summary judgment be and is hereby entered in favour of the applicant against 1st and 2nd respondents jointly and severally, one paying the other to be absolved in the following terms;

The cancellation of lease in respect of Shop number 4, Block C of 54 Rezende Street, Harare is confirmed.

The respondents and all those claiming occupation through them be and are hereby evicted from Shop number 4, Block C of 54 Rezende Street, Harare.

The respondents be and are hereby ordered to pay arrear rentals in the sum of US$7900.00 or equivalent local currency at the prevailing bank rate due from the 1st of April 2020 to the 1st of September 2020.

The respondents be and are hereby ordered to pay the sum of ZWL457 448.96  being arrear rentals and operating costs outstanding from the period dating from the 30th of September 2017 to date.

The respondents be and are hereby ordered to pay costs of suit.

B Ngwenya Legal Practice, applicant’s legal practitioners

Muhlolo Legal Practice, respondents’ legal practitioners