Desai Brothers (Pvt) Ltd v Smith and Anor (HC 1979 of 2002) [2004] ZWBHC 83 (16 June 2004)

Judgment No. HB 83/2004 Case No. HC 1979/2002 DESAI BORTHERS (PVT) LTD Versus PAUL SMITH And MAXWELL TSHUMA IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 4 JULY 2003 & 17 JUNE 2004 Mrs H Moyo for applicant R Nyathi for 1st respondent T Hara for 2nd respondent Judgment NDOU J: On 4 July 2003 I granted summary judgment in favour of the applicant against the respondents jointly and severally. The second respondent has requested for the reasons of my order and this judgment provides the same. The facts are that the applicant purchased a certain quantity of cigarettes from the respondents in or about October 2001 which was paid by the applicant to the respondents. A few days afterwards, the cigarettes were collected by the police on the grounds that they were stolen and the respondents were arrested and placed on remand on charges of theft. The applicant instituted proceedings against the respondents on the grounds that in law, the contract of sale between the parties carried an implied warranty against eviction. By failing to ensure that the applicant did not get dispossessed of the goods by third parties, the applicant’s case is that the respondents were in breach of this warranty and therefore liable to compensate the applicant. The respondents have not denied the fact that: HB 83/04 (a) their title to the goods was defective at the time of the sale in that the goods were stolen; (b) the applicant was dispossessed of the goods by the police and has never recovered them; and (c) they were placed on remand on charges of theft of the same goods. The first respondent has admitted the facts as alleged by the applicant but his defence is that he was doing everything as an agent of the second respondent. The second respondent’s defence is that there was no contractual relationship between him and the applicant as he was not first respondent’s principal. The applicant’s evidence was that the first respondent telephone the Managing Director of the applicant offering the cigarettes for sale. The following day the two respondents delivered the first consignment of cigarettes at the applicant’s premises in two vehicles in Gweru. After payments to the respondents they delivered the rest of the consignment. The first respondent acknowledged in writing, receipt of $1 015 00,00 from applicant’s representative. A further $150 000,00 was deposited by the applicant into his Stanbic Bank Account. From the facts it is clear that the alleged agreement of agency between him and the second respondent was contracted in the absence of the applicant. For his part, the first respondent averred that he subsequently informed the applicant’s Managing Director that he was acting on behalf of the second respondent. The applicant’s Managing Director disputed that there was such agency brought to his attention. The applicant has paid for the cigarettes and they were taken from it by a third party. As far as the first respondent is concerned the only dispute is whether he was acting as the second respondent’s agent or not. It would be quite unconscionable to refer the matter to trial on the basis of such a HB 83/04 dispute. There is no reasonable possibility that an injustice may be done if summary judgment is granted. I am of the view that the issues in this matter can be resolved by the adoption of a robust approach. From the evidence on paper the first respondent has failed to establish clear authority, so the probabilities clearly point in the direction of there being no agency and no binding relation between the alleged principal and third parties – Willie and Millins – Mercantile Law of South Africa (7th Ed) at page 359. The conduct of the first respondent as evinced by the evidence in the affidavits filed does not indicate that he was acting as an agent for the second respondent. He is the one who contacted the applicant initially about the sale. He went (from Bulawayo) to Gweru together with the second respondent in two vehicles (he was driving his wife’s and second respondent his own, both with the cigarettes) to deliver the consignment. Part payment was made to him directly and through his bank account. He went with second respondent to collect part of the money. The second respondent was already known to the applicant and could have been paid directly without the involvement of the first respondent. If first respondent was only an agent there was no need to involve him all the way in the circumstances of this case. The second respondent’s case is a bare denial. The Managing Director of the plaintiff and another witness say he was involved all the way as outlined above. This was confirmed by the first respondent. His involvement has been overwhelmingly established. This is a case where the court is justified to ignore the existence of the issues raised by the respondents for the sake of equity and convenience – Geldenhuys v Kotze 1964(2) SA 167 and Mhungu v Mtindi 1986(2) ZLR 171 (SC) at 175G-H. HB 83/04 Admittedly summary judgment is an unusual and drastic remedy accorded only where a plaintiff could establish his case clearly. However, the legal process should not be abused simply in order to delay just claims – Jena v Nechipota SC-15-86; Mbayiwa v Eastern Highlands Motel (Pty) Ltd SC 139-86; Tanhira v Makoni SC-18-88; In Vogue (Pvt) Ltd v E L Bulle HH-82-93; Faust Products (Pvt) Ltd v Continental Fashions (Pvt) Ltd 1987 (1) ZLR 45 HC and Omarshah v Karasa 1996(1) ZLR 584 (H). It is for these reasons that I granted summary judgment jointly and severally against the two respondents. Joel Pincus, Konson & Wolhuter, applicant’s legal practitioners Sibusiso Ndlovu, first respondent’s legal practitioners Moyo-Hara & Partners, second respondent’s legal practitioners