Paroan Vista (Pvt) Ltd. v Sable Press (Pvt) Ltd. (HC 6951 of 2016; HH 98 of 2017) [2016] ZWHHC 980 (28 October 2016)

1 HH 98-17 HC 6951/16 PAROAN VISTA (PVT) LTD versus SABLE PRESS (PVT) LTD HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 28 October 2016 Opposed Matter C. Z Chikara, for the applicant F Zhuwarara, for the respondent MWAYERA J: On 28 October 2016, I dismissed an application for summary judgment and pronounced that written reasons would be availed in due course. These are they. The applicant issued summons claiming an amount of $112 231.94, being outstanding amount for bulk paper delivered to the defendant. The defendant entered an appearance to defend the claim on 24 June 2016. It is this entry of appearance to defend which prompted the applicant to file an application for summary judgment. The applicant argued that the respondent had no defence at all to the claim but had simply defended the matter so as to delay the day of reckoning. At hearing the applicant sought to amend its prayer to reduce the amount claimed from $112 231.94 to $27 500.00 pointing out that the respondent had made good the difference. It is apparent from evidence on paper that the applicant and respondent had a standing credit arrangement of between 60 and 90 days. It was apparent that the respondent was paying the instalment towards the debt as per the parties arrangement. As at September 2016 when the applicant lodged the application for summary judgment the respondent had discharged instalments reducing the level of debt to $67 231.99 and it is common knowledge, at the time of hearing the debt was further reduced as evidenced by the applicant’s proposed amended draft order for $27 500.00. HH 98-17 HC 6951/16 The issue that falls for determination is whether or not the respondent has a bona fide defence to the claim lodged by the applciant as per the summons. A good prima facie defence, as defined in Rex v Rhodian Investments Trust (Pvt) Ltd 1957 (4) SA 631 is when the defendant alleges facts which if he can succeed in establishing at trial would entitle him to succeed in his defence at trial. Once there is a bona fide defence then the application for summary judgment ought to be dismissed. The position was properly propagated in the case of Jena v Nechipote 1986 (1) ZLR 21 wherein GUBBAY JA (as he then was) stated that: “All that a defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of his success, he has a plausible case, there is a triable issue or there is a reasonable possibility that an injustice may be done if summary judgment is granted.” See also Niriv v Coleman and Others 2002 (2) ZLR 580. In the present case the applicant and respondent had a credit agreement and at no stage was the respondent requested to pay the full amount owing in one batch. The credit facility was intact when the applicant issued summons to which the respondent raised a defence since the credit facility had not been formerly terminated. The credit facility stretched for a long period and the respondent made instalment payments towards discharging the debt. The claim and application for summary judgment, in the face of existing credit facility was immaturely made. That it is not disputed there is a credit facility, in itself is an indication of a bona fide defence. The respondent does not owe the applicant the amount claimed in the summons. This is a fact accepted by the applicant as they sought to reduce the claim. If the respondent does not owe the amount claimed in the summons which occasioned the application for summary judgment then clearly the respondent has a bona fide defence. In the case of Border Concrete Engineering Co. (Pvt) Ltd v Knickelbein 1982 (2) 648 it was stated as follows: “If he (defendant) can show that he has a bona fide defence to at least part of the plaintiff’s claim and if to the best of his ability he discloses the nature and grounds of his defence and the material facts he relies upon therefore, this may well be sufficient to avoid summary judgment being granted against him even if he admits that he owe something.” The respondent in this case has a defence to part of the claim since he does not owe the whole amount claimed in the summons. Further the respondent and applicant have a credit facility which clearly buttress that the respondent has a bona fide defence. Given the genuine HH 98-17 HC 6951/16 defence of not owing the full amount claimed and the existence of a credit facility the application for summary judgment cannot be sustained. The sentiments of MAKARAU J (as she then was) in Pitchford Investments (Pvt) Ltd v Muzari 2005 (1) ZLR (1) ring true in the circumstances of this case. She stated: It is only when all the defendant’s proposed defences are clearly out of substance both in law and in fact that summary judgment may be entered in favour of the plaintiff to save the plaintiff having to undergo the drawn out proceedings of trial before obtaining judgment.” In this case, given the credit facility arrangement, and the admission that the amount claimed in the summons is not the amount owed, the applicant, does not have an unassailable claim. The applicant cannot seek summary judgment in circumstances were the standing original arrangement is to discharge the debt on instalment basis. The full amount was not yet due and thus the defence by the respondent that there was an existing payment arrangement cannot be whisked away. There is a genuine defence that there existed a credit facility which could not be unilaterally terminated by the applicant. It appears the applicant prematurely applied for summary judgment. The existence of credit facility and the request to amend the draft order tallies with the respondent’s defence that they disputed the amount claimed. Accordingly given the bona fide defence raised by the respondent the application for summary judgment ought to fail. IT IS ORDERED THAT: The application be and is hereby dismissed with costs. Dhlakama B. Attorneys, applicant’s legal practitioners Coghlan Welsh and Guest, respondent’s legal practitioners