Siyai Bulabula v Leafloaf Enterprises (Pvt) Ltd & Anor

### Preamble
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Bulabula v Leafloaf Enterprises (Pvt) Ltd & Anor
HMA 15-19
HC 451/18
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SIYAI BULABULA

versus

LEAFLOAF ENTERPRISES (PVT) LTD

and

AGAINSON MRALASI

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO, 7 March 2019

Summary judgment

O. Mafa, for the applicant

I. Murambasvina, for the respondents

MAFUSIRE J

[1]	This was an application for summary judgment. The defence was bogus. I granted the application soon after argument and gave reasons ex tempore. The respondents say they want to appeal. They have asked for a written judgment. This is it.

[2]	The matter was a simple contract of purchase and supply. The respondents were in breach, having performed only a part of their obligation. The applicant cancelled the contract and sued for the return of part of the purchase price. The respondents denied they were in breach. They also claimed the purchase price was not due to the applicant but to his lender. I felt no defence could be more spurious.

[3]	The contract was in November 2017. It was for the purchase and supply of plant and equipment for use at the applicant’s mining location. These comprised a tractor and a front-end loader. The agreed cost was $38 500 for the tractor and $88 000 for the front-end loader.

[4]	Except for the quotation generated by the second respondent through his alter ego the first respondent, setting out the above breakdown, and the loan facility granted the applicant by Fidelity Printers & Refiners (Pvt) Limited (“the lender”), inter alia, to fund the purchase, nothing else was in writing. A clause in the loan facility reserved to the lender, the right to pay the purchase price for the plant and equipment directly to the supplier. It was common cause the respondents were procuring the equipment from South Africa.

[5]	The applicant said the agreement between the parties was that delivery of both machines would be made within fourteen days of payment or three months, at the latest, in case of unforeseeable delays. The respondents denied this and insisted the contract was open-ended with no definite date of delivery stipulated.

[6]	But quite apart from the improbability of serious businessmen entering into such a run-of-the-mill type of contract without agreement on such an elementary term as to date of delivery, the respondents’ stance was at war with the situation on the ground.

[7]	One aspect that made me lean towards the applicant’s version was that the tractor was indeed delivered within a few weeks, not months, of the payment of the purchase price. In line with the loan facility, the lender had deposited the purchase price directly into the respondents’ bank account. That had been done towards the end of November 2017 although the exact date has not been specified. But by 13 December 2017 the tractor had been customs cleared by the Zimbabwe Revenue Authority. It was delivered to the applicant in the same month. That was not an act of benevolence by the respondents. It was action in discharge of their obligations in terms of the contract.

[8]	Another aspect that weighted in favour of the applicant was that a whopping ten months after receiving payment, the respondents had still not delivered the outstanding front-end loader despite several follow-ups by the applicant.  On 10 September 2018 his lawyers dispatched a letter of demand giving the respondents seven days to, inter alia, deliver the front-end loader or, alternatively, refund him the purchase price.

[9]	The respondents’ lawyers replied the same day. They tacitly admitted the breach. Their letter read in part:

“Our client accepts that there is a Front end Load (sic) TLB still to be supplied to yours. There were logistical problems that caused the delay in him delivering the front end loader inter alia these include interests rate (sic) and the fact the machine (sic) that had been purchased had papers that did not tally with it. Resultantly, the machine had to be returned to South Africa.”

[10]	In the same letter, the respondents sought the applicant’s indulgence to accept delivery by not later than 12 October 2018. The applicant flatly turned down the request. Three days later his lawyers wrote to cancel the contract on the basis that given the deterioration of the contractual relationship between the parties, he harboured fears that the respondents could end up delivering a substandard or defective machine. A day later the applicant filed a summons for the refund of the purchase price plus damages and costs of suit. Upon the respondents’ entering an appearance to defend the applicant applied for summary judgment.

[11]	The hearing of this case was taking place one year and five months after the respondents had received the purchase price. On me checking whether the respondents were seeing nothing wrong with that, Mr Murambasvina said once the applicant had resorted to litigation, the respondents had decided to await the outcome. I thought that was being mala fide.

[12]	For the first leg of the respondents’ defence, Mr Murambasvina maintained that since the contract was made without reference to time, it was incumbent upon the applicant to place the respondents in mora. He cited the case of Asharia v Patel & Ors 1991 (2) 276 (SC) and argued that the applicant had not placed the respondents in mora.

[13]	I have not accepted that the contract was made without reference to time. It was. The evidence of that was the time the tractor was delivered. That was the true contract time. The two pieces of machinery were to be delivered together, not piece-meal. Secondly, the respondents admitted they were in breach. Thirdly, and at any rate, the respondents were placed in mora. Until the applicant started taking steps to force compliance, for a staggering nine months after they had delivered the tractor, the respondents were just quite about the outstanding front-end loader.

[14]	Against the above background, the seven days given to the respondents in the applicant’s letter of demand was not unreasonable. At any rate, all that the applicant now wanted was his money back, not delivery of the outstanding machinery. The respondents were not saying they could not pay it back or that they could not do so within the stipulated time. Their reason for non-payment was something ridiculous as I shall demonstrate below.

[15]	The case of Asharia, supra, lays it down as a general rule that where the time for performance has not been agreed upon by the parties, performance is due immediately on the conclusion of the contract or as soon as is reasonably possible in the circumstances (my emphasis). Admittedly, the debtor does not, ipso facto, fall into mora. The creditor has to make demand. This demand is called interpellatio. Once he does that, the debtor is placed in mora ex persona. Interpellatio may be made orally; by letter or through the issuing of a summons. This matter was a text book case. All the ingredients of mora ex persona were there.

[16]	The respondents’ second leg of defence was that the refund of the sum of $88 000 was due to the lender, not the applicant. In support, they produced a letter to them allegedly from the lender, dated 9 October 2018, demanding the return of the amount and giving the account number into which it was to be deposited.

[17]	This was a very poor subterfuge. This ducking and diving is the kind of behaviour that invites all sorts of uncomplimentary sobriquets to the legal profession and its practitioners. As ROBINSON J would put it:

“Let me add that to have found in this matter that there was no contract between the parties would have been artificial in the extreme and, I am sure, would have prompted any reasonable businessman to remark that if, before, he had thought the law was an ass, he now knew for certain that it was, since it had shown itself to be the domain of niggling academics out of touch with reality and to have nothing to do with the cut and thrust of the business world where one is concerned, not with the legal niceties pertaining to, but with the perceived existence of a contract”.

[18]	Of course, there could be no question Mr Murambasvina knew that the money was not the lender’s money. He knew it was the applicant’s money. The lender was merely the applicant’s payment agent. It was to ease the doing of business that the purchase price was deposited by the lender directly into the respondents’ bank account. The applicant is paying back the loan. He is being charged interest on it. There was no privity of contract between the lender and the respondents. The lender’s letter to the respondents was of no consequence. It was just a recognition that the respondents were in breach of their obligations to the applicant in respect of the contract that had given rise to the secondary contract of loan between the applicant and the lender. Quite telling was the acknowledgement, in the letter itself, that the money had been paid to the respondents “… on behalf of Siyai Bulabula Mine” (my emphasis).

[19]	The principles relating to summary judgment are so well-known as to require no re-statement, let alone any citation of authorities. But, it being such a drastic remedy, almost amounting to a violation of the sacred audi alteram partem rule, summary judgment will not be granted where, among other things, the issue raised involves delving into difficult questions of law or of fact. If the defendant raises an issue which, if proved, will amount to a defence, he should be entitled to his day in court. Summary judgment is granted only to a plaintiff with an unassailable case.

[20]	The often quoted cases on summary judgment are Roscoe v Stewart 1937 CPD 138; Shingadia v Shingadia 1966 RLR 785; Chrismar (Pvt) Ltd v Stutchbury & Anor 1973 (4) RLR 123; Jena v Nechipote 1986 (1) ZLR 29 (SC); Reid v Gore 1987 (2) ZLR 134; Joan Spencer Rex v Rhodian Investments (Pvt) Ltd 1998 (2) ZLR (H); Hales v Doverick Investments (Private) Limited 1998 (2) ZLR 235 (H); Dube v Medical Services International Ltd 1998 (2) ZLR 280 (SC) and Chindori-Chininga v National Council for Negro Women 2001 (2) ZLR 305 (H).

[21]	That summary judgment is a drastic remedy that is not lightly granted is the one side of the coin. The flip side is that a plaintiff whose belief it is that he has an unanswerable case should not be saddled with the costs associated with a trial and the attendant delays where the defence is bogus. The quintessence or efficacy of summary judgment should not be hampered by procedural trickery. Thus, at the end of the day, it is a matter of balancing the competing interests in any given situation.

[22]	It was upon the above grounds that I granted the order for summary judgment in terms of the applicant’s draft whose prayer for costs was on the higher scale.

7 March 2019

Mutendi, Mudisi & Shumba, applicant’s legal practitioners

Murambasvina Legal Practice, first and second’s legal practitioners