Banda v Sibanda & Anor (HC 1846 of 2014) [2015] ZWHHC 155 (17 February 2015)

1 HH 155-15 HC 1846/14 TAYESA BANDA versus VUSANI G. D. SIBANDA and ORRIL ENTERPRISES (PVT) LIMITED HIGH COURT OF ZIMBABWE TAGU J HARARE, 10 and 18 February 2015 Opposed application Mrs C T Mugabe, for applicant I Mataka, for respondents TAGU J: This is an application for a summary judgment brought in terms of r 64 (1) of the High Court Rules. Vusani G. D. Sibanda (hereinafter referred to as the first respondent), is the Director of Orril Enterprises (Pvt) Limited (hereinafter referred to as the second respondent). Sometime in September 2013 the applicant and the second respondent entered into a verbal agreement in terms of which the second respondent was to purchase a motor vehicle on behalf of the applicant at a ZIMRA Public Auction in Harare. Pursuant to that agreement applicant paid to second respondent a sum of $ 400.00 being part of the bidder’s card to facilitate second respondent to purchase the vehicle on behalf of the applicant. On 26 October 2013 the second respondent, through the first respondent authored a correspondence to the applicant to the effect that second respondent had secured a Toyota Fortuner Lot Number 224 with the bid value of US$ 12 300. On 11 November 2013 the applicant deposited a sum of US$ 12 000.00 into second respondent’s FBC Bank account in Kwekwe. Although the money was drawn by the respondents in terms of the agreement, the respondents failed to deliver the vehicle resulting in applicant demanding a refund of the money. Despite several demands the respondents failed to either deliver the vehicle or refund the money. From 4 September 2013 to the 21 February 2014 there were various excuses and unfulfilled promises from the respondents as evidenced by the SMS Messages on annexure E. HH 155-15 HC 1846/14 In response to the applicant’s request the respondents wrote a letter of acknowledgement and giving the applicant three options. In the letter of 31 January 2014 they stated as follows:- “RE: Purchase of Motor Vehicle We write in response to your enquiry on the delay of the motor vehicle (Toyota Fortuner Lot No. 224) as per our agreement. Kindly note that the bid value of the vehicle in question has been contested by the seller and Zimra is taking precautions before they can release the car. Kindly advice which option will suit you best of the below listed:- 1. Wait until issue is resolved with Zimra and Vehicle owner 2. Full Refund (US$ 12 300) 3. Sourcing of alternative vehicle. Please accept our sincere apologies in the delay of closure of this issue. We thank you for your patience and your continued patronage. Yours …………………………………………………………. Vusani G. D Sibanda ( For and on behalf of Orril Enterprises) By 5 March 2014 nothing was fulfilled. The applicant then issued summons against both respondents. What is now clear is that the respondents have now changed their minds. They are now contesting the applicant’s claim on the ground that they connived with the applicant to write a false letter of 26 October 2013 wherein they inflated the bid value of the vehicle by US$ 3 000.00, because the applicant wanted the extra US$ 3 000.00 from her employer to purchase a stand. The letter stated as follows:- “ RE: PURCHASE OF MOTOR VEHICLE Thank you for showing interest in engaging our services in securing a motor vehicle for you from ZIMRA Auction Rummage Sale. The suitable vehicle I have sourced for you is a Toyota Fortuner Lot No. 224 with a bid value of (USD12, 300.00) subject to confirmation. Please also note that Orril Enterprises will perform all formalities as regards to registration, find copy of sales conditions from auctioneer. It is also in your own interest to note that these vehicles are disposed of by ZIMRA as a result of them having been seized for lack of proper clearance formalities. Attached is a copy of sale conditions, pay particular attention to condition 3, 4, 5, 8 and 9. Our banking details are as follows: FBC Bank Kwekwe Branch Account NO. 6142641350135 Yours Faithfully …(signed by DG Sibanda)…… Vusani G. D. Sibanda (For and on behalf of Orril Enterprises)” In their heads of argument the respondents stated in paragraph 6 the following- HH 155-15 HC 1846/14 “6. On the 12th November, 2013, 2nd Res pendent through 1st Respondent made a withdrawal from 2nd Respondent’s bank account in the sum of US$ 3 000.00 and 1st Respondent physically handed it to Applicant at Nandos food outlet in Kwekwe. On that particular day Applicant was on her way to Harare.” With the greatest of respect the respondents are not being truthful to the court. This paragraph contradicts their letter dated 31 of January 2014 which I quoted above. If they had paid the applicant US$ 3 000.00 on the 12th November 2013, why would they offer a “Full Refund (USD 12,300). Mrs C. T. Mugabe submitted that the applicant’s claim is so clear and unanswerable as amplified by the papers filed of record. She submitted further, that the respondents have no bona fide defence to the claim. The respondents dismally failed to take this court into their confidence. They failed to produce any evidence of what they are now claiming. In casu, this is an application for summary judgment. The Rules on Summary Judgment are clearly that the applicant must allege that the respondent does not have a bona fide defence and has merely entered the appearance to defend with the objective, not of protecting any existing or anticipated right, but for the sake of delaying a just claim by the applicant. The respondents are admitting liability to the tune of US$ 9 400.00. They failed to prove that they paid back US$ 3000.00. In order to succeed in defeating a summary judgment application the respondents must disclose a defence and material facts upon which that defence is based with sufficient clarity and completeness so as to persuade the court that if proved at the trial such facts will constitute a defence to the claim. Bald and unsubstantiated facts will not suffice: Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235, Kingstons Ltd v L. D. Ineson (Pvt) Ltd 2006 (1) ZLR 451. In the present case the applicant has been able to prove her claim right from the beginning up to the end. The respondents acknowledged their indebtedness to the applicant at each level of the transactions. Annexure A says- “ ACKNOWLEDGMENT OF RECEIPT I VUSANI G. D. SIBANDA do hereby acknowledge receipt of cash in the sum of US$ 400.00 (Four hundred dollars only) being PART OF BIDDERS CARD ZIMRA AUCTIONS. DATED AT KWEKWE ON THIS 3RD DAY OF SEPTEMBER 2013. SIGNATURE…..(of GD Sibanda) AS WITNESSES 1. (first witness) 2. (second witness)” HH 155-15 HC 1846/14 The applicant was able to prove that the respondents have no bona fide defences to the claim. She is entitled to her claim. The defence proffered by the respondents is made for purposes of delay the recovery of the debt. In my view, no defence whatsoever has been shown by the respondents. In the result I make the following order; that 1. Summary judgment be and is hereby entered in favour of the applicant’s claim in the summons in the following terms- (a) Payment of US$ 12 400.00. (b) Interest thereon at the prescribed rate from date of Summons to date of final payment. (c) Cost of suit on an Attorney and Client scale. Gonese Attorneys, applicant’s legal practitioners Makonese, Chambati & Mataka Attorneys, respondent’s legal practitioners