Wilberg Inv. (Pvt) Ltd v Twalumba Holdings (Pvt) Ltd (HC 10775 of 2013) [2015] ZWHHC 58 (27 January 2015)

1 HH 58-15 HC 10775/13 WILBERG INVESTMENTS (PVT) LTD versus TWALUMBA HOLDINGS (PVT) LTD HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 20 January 2015 and 28 January 2015 Opposed Application W. Muchengeti, for the applicant Ms N. Sai, for the respondent MATHONSI J: This is an application for summary judgment in which the applicant craves for judgment against the respondent in the sum of $106 640-20 together with interest at the prescribed rate from 25 September 2012 to date of payment and costs of suit. The respondent on the other hand would have none of it and frantically opposes the application on the flimsiest of grounds ever put on paper. On 16 December 2013, the applicant, an incorporation engaged in civil construction business, instituted summons action against the respondent, another incorporation in the same trade, for payment of the sum of $106 640-00 due in terms of a verbal agreement entered into in 2011 for civil construction material supplied and road resealing services rendered. The respondent entered appearance to defend but, believing that appearance had been entered for dilatory purposes, the applicant filed this summary judgment application verifying the cause of action. The applicant relies on 3 letters penned by the respondent on 25 September 2012, 22 November 2012 and 17 January 2013 and yet another written on its behalf by its legal practitioners Messrs Mundia and Mudhara on 15 July 2013 which it says constitute an unqualified acknowledgment of indebtedness as would suggest that the respondent cannot possibly mount any bona fide defence to the claim. On 25 September 2012, the respondent’s Group Chief Operating Officer M. Sibanda wrote to the applicant on behalf of the respondent as follows: HH 58-15 HC 10775/13 “RE OUTSTANDING INVOICES: TWALUMBA CIVILS Your letter dated 25 September 2012 on the above subject refers. The contents are noted and correspond with our records. As stated in our meeting, both Twalumba Civils and Aspired are committed to settling the outstanding balance of $108 640-20. We would, as per your request, propose a payment plan but given our experience with our clients, payments are hardly ever made on time. Therefore, for us to profer a payment plan we will not be able to adhere to is futile. We are however undertaking to make payment each time we are paid. Based on the projects we are working on currently, we anticipate that we can settle our debt by end of June 2013. We are however working tirelessly to clear the balance before then. We trust you can find our communication in order.” Rocket science is not required to comprehend that the respondent had received a demand for payment of a specified figure from the applicant in respect of “outstanding invoices.” That the respondent acknowledged the amount claimed as owing is pretty obvious as the contents of the demand corresponded with their records. It is also apparent from the contents of the respondent’s letter that the applicant had requested a payment plan which the respondent said it could not make giving reasons for such failure. Here is an acknowledgment of debt, complete with the amount acknowledged and an “undertaking to make payment.” For Ms Sai to then say that the respondent was not placed in mora when it even undertook to settle the debt by the end of June 2013 is the height of desperation. The communication to settle the outstanding balance was repeated by the respondent in a letter dated 22 November 2012 in which excuses for non payment were made. On 17 January 2013 the respondent, again through its Group Chief Operating Officer, sent another letter to the applicant which states in part: “RE: TWALUMBA HOLDINGS DEBT TO WILBERG Compliments of the new season. The above subject matter refers. We write to advise that we have made a deposit of $2 000-00 as per copy of attached deposit slip towards liquidating our debt. This small payment leaves the outstanding balance at $106 640- 20 (the extract amount claimed by the applicant). We could only pay this amount because only one of our claims with the least amount due was paid. Once we receive another payment we will also make another payment to you. We trust you find our communication in order.” Much later on 15 July 2013 the respondent had not liquidated the debt but still found time to make excuses. Writing on its behalf, Messrs Mundia and Mudhara were also coming up with another dimension for non-payment, the elections. They stated: HH 58-15 HC 10775/13 “Our client does not presently have assets to offer as security. As indicated at the meeting, a clear payment plan will be proposed immediately after the general elections. This is so because most of the projects that our client is engaged in are now at a standstill. We ask that you kindly bear with our client until after the elections when the situation is expected to normalise.” You have to give it to the respondent, this kind of resourcefulness in securing an extension of time to pay is of a very rare quality. It is the stuff for legends indeed. As to what the general elections had do with settlement of a debt, which by the respondent’s own commitment made earlier, ought to have been cleared by the end of June 2013, is one of those mysteries of life. In order to defend an application for summary judgment the respondent must disclose a defence and material facts upon which the defence is based with sufficient clarity and completeness which will persuade the court that if proved at the trial such facts will constitute a defence to the merits: Hales v Doverick investments (Pvt) Ltd 1998 (2) ZLR 235 (H) 239 A- B. Not every defence raised will succeed in defeating a claim for summary judgment. The defence raised must be bona fide: Kingstons Ltd v L. D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) 458 F-H. The respondent must not content itself with vague generalities and conclusory allegations not substantiated by solid facts: District Bank Ltd vHoosain & Ors 1984 (4) SA 544 (C) 547 G-H; Mubaiwa v Eastern Highlands Motel (Pvt) Ltd, S – 139-86. The respondent in casu having burnt its fingers badly on the argument that it was not placed in mora, shifted ground (it was always standing on sinking sand), and sought to argue that the original agreement was novated by a new one located in the form of the letter it wrote on 17 January 2013 undertaking to clear the debt by June 2013. It was argued that the letter is evidence of novation and Ms Sai maintained that although the applicant did not respond to the letter, its non response constituted a tacit acceptance of the new obligation. Now this is trifling in the extreme. The foundations of such proposition are not only obscure in the extreme, they are as remote from reality as Ninevah and Babylon is to us. A simple definition of novation can be found in R. H Christe, Business Law in Zimbabwe, ed 2, Juta & Co Ltd at pp107-8 where the learned author states: “Novation means the replacing of an existing obligation by a new one, the existing obligation being thereby discharged. ------ Because novation involves a waiver of existing rights, it follows that it will not be presumed and as in Ballenden v Salisbury City Council 1949 SR 269, 273 1949 (1) SA 240 246, it must be strictly proved.” I agree with Mr Muchengeti for the applicant that there is simply no evidence of novation presented by the respondent. It cannot get away with presenting a defence that is HH 58-15 HC 10775/13 needlessly bald, vague or sketchy as it has done meaning that it lacks bona fides and accordingly cannot defeat a summary judgment application. Before I conclude it is necessary to mention that the applicant filed and answering affidavit which it was not entitled to file. In terms of r 67 of the High Court of Zimbabwe Rules, 1971: “No evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice nor may either party cross-examine any person who gives evidence viva voce or by affidavit; Provided that the court may do any one or more of the following- (a) Permit any evidence to be led in respect of any reduction of the plaintiff’s claim; (b) ----------- (c) Permit the plaintiff to supplement his affidavit with a further affidavit dealing with either or both of the following- (i) (ii) Any matter raised by the defendant which the plaintiff could not reasonably be expected to have dealt with in his first affidavit; or The question whether, at the time the application was instituted the plaintiff was or should have been aware of the defence.” Clearly therefore, the applicant is not entitled to a second bite at cherry except with the leave of the court after satisfying the court that a matter raised by the respondent in opposition was a new matter not within contemplation at the time the founding affidavit was made. Happily, Mr. Muchengeti conceded that the offending affidavit should not have been filed in the manner in which it was filed. I intended therefore to expunge it from the record as I have totally disregarded it anywhere. In the result, it is ordered that:- 1. The answering affidavit of the applicant filed on 25 February 2014 is hereby expunged from the record. 2. Summary judgment be and is hereby entered for the applicant as against the respondent in the sum of $106 640-00 together with interest at the rate of 5% per annum from 25 September 2012 to date of payment in full. 3. The respondent shall bear the costs of suit. Muchengeti & Company, applicant’s legal practitioners Mundia & Mudhara Legal Practitioners, respondent’s legal practitioners HH 58-15 HC 10775/13