Victoria Falls Hotel Partnership v Jackson Munyeza Pools (HC 6525 of 2015; HH 244 of 2017) [2017] ZWHHC 244 (12 April 2017)

1 HH 244-17 HC 6525/15 VICTORIA FALLS HOTEL PARTNERSHIP versus JACKSON MUNYEZA POOLS HIGH COURT OF ZIMBABWE MAKONI J HARARE, 10 November 2016 and 12 April 2017 Opposed Matter - Summary Judgment Ms N. G Maphosa, for the applicant J Mataka, for the respondent MAKONI J: This is an application for summary judgment issued by the applicant against the respondent on the basis that the latter has no bona fide defense against the applicant’s claim. It seeks the following relief, “1. That the contract between the applicant and the respondent be cancelled. 2. The respondent shall pay to the applicant US11 800 together with interest calculated at 5% per anumm from the 7th August 2013 to date of full payment. 3. The respondent shall pay the costs of suit.” The background to the matter is that the parties entered into a verbal agreement or on August 2013 whereby the respondent was contracted to renovate two tennis courts at the Victoria Falls Hotel in Victoria Falls. The respondent quoted the work at US$414 800.00 and requested an 80% deposit in the sum of US$11840.00. The applicant deposited the amount into the respondent’s bank account on August 6. The applicant says that the respondent has not done anything to attend to the refurbishment of the tennis courts nor has it tendered restitution of the amount paid. Instead it has made many undertakings to commence work to no avail. This is evidenced in the email communications between the parties in annexure D1-D5. The applicant then communicated the cancellation of the contract by letter dated 13 July 2015 and issued summons commencing action on the 13 July 2015. HH 244-17 HC 6525/15 The respondent entered an appearance to defend. It is averred by the applicant that the respondent has no bona fide defense and that the appearance to defend was not a genuine one at all and does not warrant the matter proceeding to trial. After the respondent filed the appearance to defend and out of courtesy, the applicant wrote a letter to the respondent’s lawyers requesting to know the respondent’s defense and to date no such defense has been proffered. The respondent however contends that it did not enter the appearance to defend to delay the process and that it has a bona fide defense against the applicant’s claim. It avers that it is prepared to finish off its work and that there was no clause in the contract between the parties for cancellation of the contract. It blames the applicant for its default. The respondent further contends that the applicant’s claim is not unassailable as it alleges. There are a lot of issues which needs proper ventilation and clarity to an extent that there is need to call witnesses. The respondent raised two defenses. Firstly it averred that though the payment of US$11 840.00 was made there was an unexpected upward spiral of material soon thereafter which needed additional funds. The other defense is that there was a supervening impossibility when the transporter hired and paid to transport quarry to site vanished into thin air. The respondent claims that it demanded more money from the applicant who was not willing to pay hence its failure to perform its part of the contract The procedure for summary judgment is provided for in Order 10 r 64 of the High Court Rules 1979 (the Rules). Summary judgment procedure is a procedure designed to enable a plaintiff whose claim falls within certain defined categories to obtain judgment without the necessity of going to trial. The objective is to enable the plaintiff with a clear case to obtain swift enforcement of a claim against defendant who has no real defense to that claim. A number of cases in our jurisdiction and in South Africa have stressed the fact that the remedy provided by this rule is of an extraordinary and drastic nature which is very stringent in that it closes the door for the defendant . The basis for granting the claim is that the plaintiff’s case is unimpeachable and that that the defendants defense is bogus or bad at law. See Herbstein Van Winsen The Civil Practice of the High Courts 4th ed p 434. The court must guard against an injustice of expecting the defendant to satisfy the court that he has a bona fide defense without the benefit of further particulars, discovery and examination. HH 244-17 HC 6525/15 The defendant must only establish a prima facie defense and must allege facts which if he can succeed in establishing them at trial would entitle him to succeed in his defense at trial. See Rex v Rhodian Limited 195 R & N 723. The issue is whether the defendant has alleged facts which if he can succeed in establishing at trial would entitle him to succeed. Of note, in casu is the fact that the respondent did not attach any documents to support its claims, despite the fact that it averred that there is email communications to that effect. On the other hand the applicant attached communications which reflects that, a) The amount of US$11 840.00 was demanded and paid. The respondent does not oppose that. b) The respondent defaulted on the contract in that it did not renovate the tennis court as contracted. c) The applicant had nothing to do with the respondent’s default. The reason the respondent defaulted was not that prices of material were increased but it had been let down by one or more of its suppliers. This had nothing to do with the applicant. In the email communications, no mention is made of any increase in costs of labor or any demand by the respondent to applicant for payment for extra costs. In one such email the respondent says; “…we are now in a better in a better state to do the tennis court. Allow me to reiterate the two major factors that resulted in the delays in executing this project within the agreed stipulated time notably the failure by one of our suppliers to deliver materials which we had paid for upfront and the unavailability of one of the main imported product used in the resurfacing of the tennis court…” It also says, “Allow me to start by apologizing for the delays caused in undertaking this renovation …. Our biggest let down was on the quarry dust that had to be sourced from Bulawayo. Money was paid and unfortunately the transporter vanished and efforts from our company to have the quarry dust from Bulawayo Davies Granite where (sic) in vain, we have had to source for a reliable and trustworthy transporter and the materials are being delivered this week….” d) The respondent did not commence any work at all in Victoria Falls. The respondent communicates an impossibility to begin not to complete the resurfacing of the tennis court because of unavailability of material. If it did not had no material especially the HH 244-17 HC 6525/15 imported product mentioned, how then it commenced the work. This claim is of course just a ruse to derail the Court’s attention from the respondent’s inexcusable default as nothing can be further from the truth. It is clear the respondent has failed to honor its part of the contract for two years. It sought to blame the applicant for its default by alleging that there was an upward spiral of materials and it needed more funding from the applicant hence its withdrawal from the site and failure to finish off the renovations. It has failed to establish that the applicant was to blame for its failure to honor its obligations in terms of the agreement. The attached emails establish the contrary. Secondly the respondent argues that there was also some supervening impossibility when the transporter who was paid to transport the quary which was to be used vanished into the thin air without any trace after having being paid thus making it difficult for the respondent to fulfill its obligation. The respondents made reference to the case of Bischoberger Van Eyk 1981 (2) AS 607 at 610-611 H that; “The court should have regard to the rule that impossibility of performance does in general excuse the performance of a contract but does not do so in all cases and must then look at the nature of the contract, The relation of the parties, the circumstances of the case and the nature of the impossibility to see whether the general rule should be applied. If the causes were contemplated by the parties they are generally speaking bind by the contract, if on the contrary they were no such thing as human foresight could have foreseen the obligations under the contract are extinguished.” At the hearing of the matter the defendant conceded that it could not sustain defense of supervening impossibility. Having said the above, it is clear that the defendant has failed to allege facts which if he can succeed to establish at trial would entitle him to succeed in his defense. In the result, I will make the following order; “1. 2. 3. The contract between the applicant and the respondent is hereby cancelled. The respondent is ordered to pay the applicant US$11 800.00 together with interest calculated at 5% per annum from the 7th August 2013 to date of full payment. The respondent shall pay the costs of suit.” HH 244-17 HC 6525/15 Sawyer & Mkushi, plaintiff’s legal practitioner Chambati Mataka & Makonese, defendant’s legal practitioners