Authentic Group of Companies v Callander Enterprises (HC 2723 of 2016; HH 206 of 2017) [2017] ZWHHC 206 (29 April 2017)

1 HH 206-17 HC 2723/16 AUTHENTIC GROUP OF COMPANIES (t/a GUESTLINE (PVT) LTD) versus CALLANDER ENTERPRISES (t/a CECOMMS) HIGH COURT OF ZIMBABWE ZHOU J HARARE, 23 & 29 March 2017 Opposed Application P. Mahembe for the applicant L. Ziro for the respondent ZHOU J: This is an application for summary judgment. The applicant, which is the plaintiff in the main matter, instituted an action against the respondent for the following relief: (a) An order for the eviction of the defendant and all those claiming occupation through it from the premises known as Ground Floor, Shop No. 5, Thaine Building, Harare. (b) Payment of the sum of US$13 819.38 in respect of arrear rentals owed to the plaintiff by the defendant. (c) An order for payment of holding over damages at US$21.33 per day from the date of summons to the date of payment in full. (d) Payment of interest at 5% per annum from the date of summons to the date of payment in full. (e) Costs of suit. After the summons was served the respondent entered appearance to defend. The applicant responded by instituting the present application for summary judgment. At the hearing of the matter the answering affidavit filed on behalf of the applicant was admitted in evidence with the consent of the respondent. HH 206-17 HC 2723/16 The facts which are not in dispute are that the plaintiff and defendant entered into a lease agreement in respect of the premises known as Ground Floor, Shop No. 5, Thaine Building, Harare. There is a dispute as to whether the agreement was the written memorandum which is annexure “A” to the plaintiff’s declaration or there was a verbal agreement as alleged by the respondent. This issue will be adverted to in due course. What is not in dispute is that the respondent occupies the plaintiff’s premises in terms of a lease agreement. On 18 February 2016 the applicant, through its legal practitioners, wrote a letter, annexure “D” to the papers in this application, in which the respondent was advised that it had defaulted in its rental payments since January 2015. As at the date of that letter the amount which was due by the respondent to the applicant was US$13 819.38, which the applicant’s legal practitioners demanded to be paid within seven days of delivery of that letter of demand. The respondent did not dispute that amount and, in fact, did not respond to that letter. Summons was issued claiming that same amount. Summary judgment is allowed where the plaintiff’s claim is unanswerable, and there is no need to put the plaintiff through the expense of a trial. It is a drastic remedy, hence the principle that it will not be granted where the defendant shows that it has a plausible defence to the applicant’s claim or that “there is a mere possibility of success” of its case or that the defendant has raised a triable issue which warrants investigation through a trial. See Jena v Nechipote 1986 (1) ZLR 29 (SC) at 30 D-E. I need to emphasise that the defence pleaded by the defendant must be genuine and not inherently unconvincing. In the present case the respondent alleged a verbal lease agreement the full terms of which have not been stated. The respondent has not explained why when it received the letter of demand from the applicant’s legal practitioners it did not allege that verbal agreement which it claims to have excused it from paying rent for some months. The respondent alleges that there was an agreement for it not to pay rent for the months of January to August 2015 because its property had been destroyed by leaking water. But there is no evidence of payment of rent after August 2015. According to the respondent, from September 2015 a monthly rent of US$400.00 and $30.00 for operating costs were payable. The receipts attached to the opposing papers do not show that there were monthly payments of US$430.00 made by the respondent after September 2015. The respondent remained in occupation even at the time that the matter was argued HH 206-17 HC 2723/16 although it is not paying rent. Clearly the defence raised is an unacceptable abuse of court process in which spurious disputes of fact are contrived in the hope that the day of reckoning may be staved off. The respondent has no bona fide defence to the applicant’s claim. The holding over damages of US$21.33 per day are based on the monthly rent of US$640.00 which was admitted by the respondent’s counsel. This is a matter in which, if the court had been asked, an award of costs on the attorney- client scale, including costs de bonis propriis against the respondent’s legal practitioners, would have been justified. The opposition to the relief being sought is vexatious and represents a clear abuse of the procedures of this court. The legal practitioners for the respondent associated themselves with that abuse of court procedures by failing to properly advise their client. Mr Ziro for the respondent persisted with the totally unsupportable submission that the respondent was not in breach of the lease agreement even in the face of clear evidence that the respondent has not paid rent even after that period which he said he had been excused from paying the rent. That approach to litigation is totally unacceptable from a legal practitioner who is an officer of this court and owes a duty to honestly advise his client. In the result, IT IS ORDERED THAT: 1. Summary judgment be and is hereby granted in favour of the applicant and against the respondent for: 1.1 An order for the eviction of the respondent and all those claiming occupation through it from the premises known as Ground Floor, Shop No. 5, Thaine Building, Harare. 1.2 Payment by the respondent to the plaintiff of the sum of US$13 819.38, together with interest thereon at the rate of 5% per annum from the date of the summons to the date of full payment. 1.3 Payment by the respondent to the applicant of holding over damages at the rate of US$21.33 per day from the date of the summons to the date of ejectment of the respondent from the premises. 1.4 Payment of costs of suit. Mangwana & Partners, applicant’s legal practitioners Hungwe & Partners, respondent’s legal practitioners