National Employment Council FOR THE Agricultural Industry Versus ZIM BIO Energy (Private) Limited

NATIONAL EMPLOYMENT COUNCIL FOR THE AGRICULTURAL INDUSTRY

versus

ZIM BIO ENERGY (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 26 July 2018 & 8 August 2018

Opposed Matter

Ms V Kufaruwenga, for the applicant

I Chiwara, for the respondent

MATHONSI J: What remains standing out as the only defence which the respondent is clutching to, as if life itself depends on it, in resisting this application for summary judgement in the sum of $31 238-00 in statutory dues, is that the applicant should have supplied the further particulars it requested on 27 October 2015 to particularise how the sum claimed is arrived at and the basis for claiming interest from January 2014. That interesting state of affairs was achieved after Mr Chiwara for the respondent and myself had exchanged notes as a result of which he promptly abandoned the other three 3 defences which the respondent had raised in contesting the claim. The first casualty was the constitutional issue taken by the respondent that its constitutional right to freedom of assembly and association enshrined in s 58(2) of the Constitution was being violated by compelling it to pay dues to the employment council. He had relied on the authority of Netone Cellular (Pvt) Ltd v Minister of Labour and Anor 2015 (1) ZLR 291 (H) that an employer should not be compelled to be bound by a Collective Bargaining Agreement by virtue of being an employer in the industry.

When it became apparent that the Netone Cellular case was clearly distinguishable from the present where the respondent has been and still is a member of the applicant who has participated fully in collecting, contributing and remitting dues to the applicant, and was therefore estopped from denying it, Mr Chiwara beat a hasty retreat. The constitutional argument was abandoned. Next to bite the dust was the argument that the applicant’s claim for council contributions was based on a repealed Statutory Instrument (SI 101 of 2010) purportedly repealed by S.I. 116 of 2014. In fact, the applicant’s summons makes it clear that the claim is based on s 28(1) of S.I. 116 of 2014. Therefore, S.I. 101 of 2010 was not repealed by S.I 116 of 2014, the former being the council dues approved by the Minister. It does not matter that Mr Chiwara saw the light rather late, the important point being that light finally arrived and he abandoned that ill-taken submission.

The respondent had also raised the defence that its admission of liability contained in a letter written by itself in response to a letter of demand penned by the applicant’s legal practitioners demanding payment, was privileged it having been marked at the top “without prejudice”. In the letter in question the respondent had acknowledged receipt of the letter of demand dated 22 June 2015, gone on to state that it had made a direct payment to the applicant in the sum of $3 236-00 towards liquidation of the debt and undertook to make a concrete payment plan in respect of the balance in September 2015 by which time it hoped to have overcome its “cash flow challenges”. Surely the contents of the letter were not written in the course of any negotiations and did not form part of confidential negotiations. The respondent could therefore not claim any privilege on that letter. It was in consideration of that reality that Mr Chiwara again abandoned that line of defence itself the last given that what he was then left with, as l have said, is the argument that summary judgement should not have been resorted to at all because the respondent had requested further particulars.

The brief facts are that the respondent is an employer falling under the auspices of the applicant National Employment Council. In terms of s 28(1) of S.I 116 of 2014 as read with sections 1 and 2 of S.I 101 of 2010 it is obliged to collect from its employees and to also contribute levies to the applicant which should be remitted as provided for in the regulations in question agreed upon as of collective bargaining agreement. The levies were approved by the responsible minister. Although the respondent has participated in the exercise previously, it defaulted and did not remit to the applicant the sum of $31 238-00. As a result, the applicant sued eliciting a notice of appearance to defend and a request for further particulars from the respondent, but not before the respondent had, on 30 June 2015, acknowledged indebtedness to the applicant undertaking to make a payment plan in September 2015.

The request for particulars, which now anchors the respondent’s entire defence to the claim, is itself quite a modest document of a few lines. It reads:

“To enable the defendant to plead, the following particulars to the plaintiff’s claim are 	requested:

AD Para 4

Particulars pertaining to the claim of $31 238-00 are requested. A monthly breakdown of the purported outstanding arrears is requested.

AD Para 5

On what basis is plaintiff claiming interest from January 2014?”

This, coming from a party which had acknowledged indebtedness 4 months earlier meant only one thing to the applicant, that the respondent was buying time and delaying the evil day as much as possible. It then moved for summary judgement stating that the respondent has not a bona fide defence and that appearance has been entered for purposes of delay especially as the respondent had, not once but twice on 31 March 2015 and 20 June 2015, written to the applicant admitting that the statutory dues for the period extending from January 2014 to 30 April 2015 were due and owing. The applicant sought summary judgement in the sum claimed plus interest at the prescribed rate and costs of suit.

The respondent opposed the application adverting to all the defences l have referred to which have since been abandoned and need not detain us any further. As l have said all l am required to decide now is whether there is triable issue premised on the fact that particulars of how the amount claimed is arrived at and why interest is claimed from January 2014 were not given. What an applicant for summary judgement is required to do is set out in r 64 of the High Court of Zimbabwe Rules, 1971. Sub rule (1) requires an applicant to make a court application for the court to enter summary judgement for what is claimed in summons and costs. Sub rule (2) provides that the court application shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that there is no bona fide defence.

There is an optional requirement for the attachment to the affidavit in support of the summary judgment application of any documents which verify the cause of action in sub rule (3) but by virtue of the use of the word “may” in the sub rule, the attachment of documents is not mandatory. See Ndebele v Local Authority Pension Fund HB162-18; Takawira v Zimbabwe Iron and Steel Company HB42-18.

In my view the applicant has complied with the rule providing for the making of a summary judgement application. Where an applicant for summary judgement has complied with r 64, making all the necessary averments in the founding affidavit, the onus shifts to the respondent seeking to resist the application to set out a defence which commends itself for referral to trial. In other words, the respondent must show that there are triable issues. What the respondent has to do in that regard is settled in this jurisdiction. The respondent must disclose facts upon which its defence is based with sufficient clarity and completeness so as to persuade the court that if proved at the trial they will constitute a defence to the claim.

In the words of MALABA J (as he then was) in Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H) at 238 G, 238 A, while quoting Mbayiwa v Eastern Highlands Motel (Pvt) Ltd S-139-8 at pp 4-5:

“…while the defendant need not deal exhaustively with the facts and the evidence relied on to substantiate them, he must at least disclose his defence and material facts upon which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence ( Maharaj v Barclays National Bank Limited 1976(1) SA 418 (A) at 426 D)…the statement of material facts must be sufficiently full to persuade the court that what the defendant has alleged, if it is proved at the trial will constitute a defence to the plaintiff’s claim…if the defence is averred in a manner which appears in all the circumstances needlessly bald, vague or sketchy that will constitute material for the court to consider in relation to the requirement of bona fides.”

See also Kingstons Ltd v L D Ineson 2006(1) ZLR 451() at 458 F-G.

In my view, what the respondent has raised does not come anywhere near to meeting the threshold set by the authorities for defeating an application for summary judgement. The respondent cannot say; “Yes l have been sued for $31 238-00 but until such time that it has been broken down, l have a defence.” While it is true that the onus would be on the party suing to prove its claim on a balance of probabilities, where the averments have been made that the amount claimed relates to levies due by virtue of statute for the period extending from January 2014 to April 2015, that is enough for purposes of pleading. In respect of seeking summary judgment I have said that the requirements are clearly set out in r 64 and they have been complied with. It is the respondent which has failed to defeat the application and for that reason it must grieve. It has simply not set out any defence whatsoever.

In the result, it is ordered that:

Summary judgement be and is hereby entered in favour of the applicant as against the respondent for;

Payment of the sum of US$31 238-00 council dues owed to the applicant by the respondent for the period January 2014 to April 2015.

Interest on that sum at the rate of 5% per annum from due date to date of payment in full.

Costs of suit.

Jumo, Mashoko & Partners, applicant’s legal practitioners.

Coghlan, Welsh and Guest, respondent’s legal practitioners.