Elphas Mavune Maphisa v John Pocock and Company (Pvt) Ltd

### Preamble
1
HB 259/22
HC 1811/21
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ELPHAS MAVUNE MAPHISA

Versus

JOHN POCOCK AND COMPANY (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 6 SEPTEMBER AND 20 OCTOBER 2022

Opposed Application

Applicant in person

A. Ncube, for the respondent

KABASA J: 	The applicant issued out summons against the respondent under HC 1331/20 wherein the claim was couched as follows:-

“The plaintiff’s claim against the defendant is for the rendering of proper account for goods unlawfully attached and sold by the defendant in lieu of two writs of execution against movable property under cases number HC 809/16 and HC 462/17, for the return of movable property stolen by the Additional Sheriff deputies being Hazel Rusakaniko, Benias Rwizi and Lloyd Mateta or alternatively the sum of ZAR 1 587 886 and US$2 275 for replacement value thereof, damages to attached goods released back to plaintiff by Additional Sheriff and during removal, overpayment on the judgment debt in the sum of US$2 802, damages for contumelia and humiliation in the sum of US$5 000 and additional costs for transport, insurance and customs duty and installation, which despite demand the defendant neglects or refuses to pay.”

The claim, as elaborated in the declaration is said to be based on judgments the defendant “respondent” obtained against the plaintiff, “applicant” under HC 462/17 and HC 809/16.  The applicant lost both cases and was ordered to pay costs.  The bill of costs was taxed and a writ issued to recover these costs.  The execution was however unlawful as the applicant had noted an appeal in both cases and no leave to execute pending such appeal had been obtained by the respondent.

The first attachment was carried out without obtaining the applicant’s consent or guidance as required in terms of order 40 rule 335 (1).  The removal of the goods was therefore unlawful as such removal fell afoul of rule 335 (1).  After the first attachment and removal the Deputy Sheriff returned to the applicant’s residence, prepared an inventory of movable goods again without the applicant’s guidance and such writ related to the same amount for which the earlier attachment and removal had been conducted.

The second seizure and attachment occurred on 19 March 2018 and on 23rd April 2018 the Deputy Sheriff forcibly entered the applicant’s residence in his absence and made an inventory of movable property.  On 27 April 2018 the attached property was removed after the Deputy Sheriff forced entry into the premises as no one was at the applicant’s home.

The two attachments were therefore a nullity as they were in violation of the rules of court, in particular rules 334 (1), 335 (4), 335 (1) and 326 A.

The claim is therefore based on the unlawful execution of the writs in HC 462/17 and HC 809/16.  In executing these writs property was stolen, damaged and the applicant felt embarrassed and humiliated, giving rise to the claim of the various amounts already indicated at the beginning of this judgment.

The respondent contested the claim and besides pleading to the merits excepted to the summons on the basis that it was fatally defective for failure to disclose a cause of action at law justifying the relief sought against the defendant.

As regards the merits the respondent’s answer was that the applicant noted an appeal against the decision of the Magistrates Court under MC 4372/15 which appeal was not successful.  No appeal was filed against the decisions of the High Court under HC 809/16 and HC 462/17.  The respondent was therefore entitled to recover its costs awarded in both cases.  The costs were taxed and two writs of execution issued.  The Sheriff attached goods to satisfy the writ under HC 462/17 and the goods were subsequently removed on 3rd January 2018 in plaintiff’s presence.

On 19 March 2018 the Sheriff attached goods to recover the taxed costs under HC 809/16, duly completed an inventory and the goods were removed on 27th April 2018.

The first attachment and removal in respect of costs awarded under HC 462/17 saw the goods so attached being sold and realizing $1 360, of which $439,00 and $68,00 went towards the auctioneer and Sheriff’s costs respectively, leaving a balance of $852,55.  This amount was remitted to the defendant’s legal practitioners.

The second attachment was to recover costs awarded under HC 809/16.  However after removal of the attached goods, the applicant paid $1 401, 00 to the defendant’s legal practitioners and undertook to pay costs of execution incurred by the respondent.  The Sheriff was then instructed to postpone the sale of the goods.  On 24th May 2018 the applicant paid the balance of the outstanding amount and the respondent’s legal practitioner instructed the Sheriff to return the applicant’s goods.  On 28 May 2018 a release form was duly completed and served on the applicant who subsequently collected his goods.

As regards allegations of theft the respondent’s answer is that the applicant should pursue criminal prosecution, if such theft occurred.

There was no overpayment as all costs recovered were as per the court order under HC 462/17 and HC 809/16.

The applicant has instituted proceedings under HC 2544/18 against the Sheriff of the High Court claiming the same relief as is claimed against the respondent.

It is against this background that the applicant seeks summary judgment.  The application is opposed.

At the hearing of the application for summary judgment the applicant took a point in limine, arguing that the respondent’s legal practitioner was barred for failure to comply with rule 59 (8).

Rule 59 (8) provides that:-

“As soon as possible, in any event not later than seven days after filing a notice of opposition and opposing affidavit in terms of subrule (7) the respondent shall serve copies of them upon the applicant and, as soon as possible thereafter, but not later than forty-eight hours, shall file with the Registrar proof of such service in accordance with subrule (8) of rule 16.

(9) 	A respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule (8) shall be barred.”

Mr. Ncube, counsel for the respondent conceded that he was barred and opted to have the matter proceed.

The applicant proceeded to make submissions in support of his prayer for summary judgment.  His argument was that the claim is clear and unarguable as there are invoices in support of the value of the items taken from his home.  The values are therefore not contested and the taxation bills are a nullity.  There is therefore nothing more to prove or to defend and consequently there are no triable issues.  He then sought to amend the amounts reflected on a quotation filed on page 74 and 75 of the record so that such amounts would sound in US$ and not ZWL.

Has the applicant made a case for summary judgment?  I pose this question fully aware that the respondent was barred.  However it is the court which grants an order and it is therefore the court which must be satisfied that a case has been made for the grant of such order.

Summary judgment is provided for in rule 30 of the High Court Rules, 2021.  The rule provides that:-

“(1)	Where the defendant has entered appearance to defend, the plaintiff may, at any time before a pre-trial conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs.

(2)	A court application in terms of subrule (1) shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his or her belief there is no genuine and sincere defence to the action and that appearance to defend has been entered solely for purposes of delay.”

In Medclinic Medforum Hospital (Pty) Limited v City of Harare HH 718-19 DUBE-BANDA J had this to say:-

“Summary judgment is a procedure that protects a plaintiff against an ill-disposed defendant who defends the matter purely in order to delay its finalisation.  It is a remedy that may be deployed to prevent an abuse of the court procedure by a recalcitrant defendant.  See Meek v Kruger 1958 (3) SA 154 (T) at 158 C.  The remedy is extraordinary and drastic, it makes inroads on a defendant’s procedural right to have its case heard in the ordinary course of events, in that it permits the granting of a final order in a defended action without a trial.”

It follows therefore that for an application for summary judgment to succeed, the applicant must show that he/she has an unanswerable claim. The door can only be closed to a defendant to defend the action where the defendant has absolutely no answer to the plaintiff’s claim.

In Time Bank of Zimbabwe Ltd v Culroy Farm (Pvt) Ltd & Ors HH 182-03 the court had this to say:-

“All a defendant has to do to resist an application for summary judgment is to raise a prima facie defence, to establish a mere possibility of his success or that he has a plausible case or that there is a triable issue or that there is a reasonable possibility that an injustice might be done if summary judgment is granted.”

In casu has the applicant verified the cause of action and the amounts claimed?  I think not.  I say so because the applicant seeks, inter alia, the rendering of a proper account for goods unlawfully attached and sold by the defendant.  It is not in dispute that the defendant obtained judgment and sought to recover the costs it was awarded.  Such costs were taxed and writs issued.  The attachment of goods to satisfy the amounts so claimed was by the Sheriff.  It was not the defendant who attached the goods and subsequently sold them.  The defendant merely received returns from the Sheriff showing what it is the Sheriff had done on the force of a writ issued by the Registrar of the court to satisfy a judgment of the court.

The applicant also seeks payment of the replacement value of goods allegedly stolen by the Sheriff.  The question is whether a cause of action has been established as against the defendant.  Is the claim based on vicarious liability?  If so, is that legally sound?  Can such a claim be made against the defendant?  So too is the claim for damages to attached goods released to the applicant after payment of what was owed to the respondent.  Such goods had been attached and removed to satisfy the amount of costs awarded to the respondent.  Was a cause of action verified as against the respondent? These are issues the defendant has raised which the court has to be satisfied hold no water before an application for summary judgment can be granted.

The claim for damages for contumelia and humiliation as a result of the removal of goods by the Sheriff is not a liquid claim.  It is not a claim that sounds in money nor can it be easily ascertained without the adducing of evidence.  Can it therefore be said the claim is unanswerable?  Certainly not.

The applicant appeared to labour under the misapprehension that all he had to show was the value of the goods he claims were stolen and/or damaged and the corresponding costs of transport, insurance, customs duty and installation of the items applicant has to purchase in order to replace those that were stolen and/or damaged by the Sheriff.

The respondent took issue, in its plea, of the cause of action and set out its defence as regards the costs awarded under HC 462/17 and HC 809/16.

The issue therefore is not so much the proof of the value of the goods stolen and/or damaged but in the cause of action as against the defendant.

Has the defendant/respondent therefore not proffered a plausible defence and therefore shown that there are triable issues?

In the Medclinic Medforum Hospital (Pty) Limited case (supra) the learned Judge succinctly captured the applicable principle thus:-

“No onus, no evidential burden and no obligation rests on the defendant to satisfy the court that the facts set out by him are true or that the balance of probabilities in the case lies in his favour.  See Arend & Anor v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C).  The only question on which the court is called upon to decide is whether the defendant has disclosed a bona fide defence which, if proved at the trial, would constitute a complete defence to the plaintiff’s claim.  See Breitenbach v Fiat SA 1976 (2) SA 226 (T).  The defendant need not set out his defence in the affidavit with the precision that will subsequently be necessary in his plea if the application for summary judgment fails and he is given leave to defend the action.  See Wright v Van Zyl 1951 (3) SA 488 (C) at 492.  He must nevertheless formulate the defence sufficiently clearly to place the court in a position to determine whether the defence, if true, will constitute a real defence to the claim.”

I could not agree more with this exposition of the applicable principles to be considered in an application for summary judgment.

In casu the respondent set out in its plea, the following:-

a)	It obtained judgment in HC 462/17 and HC 809/16 and the judgments were not appealed against.

b)	The costs awarded in the two matters were taxed and writs issued to recover these costs.

c)	The first writ was executed for HC 462/17, the goods attached were sold and the proceeds paid out.

d)	A second writ for HC 809/16 was executed only as far as attachment and removal but the applicant subsequently paid all that was due and the respondent instructed the Sheriff to release the goods.  The goods were released.

e)	The amounts the respondent received were in satisfaction of the costs awarded in the 2 matters, HC 809/16 and HC 462/17 and there was no overpayment.

f)	The returns from the Sheriff which showed what the Sheriff had done appeared on the face of such to reveal that the Sheriff’s actions were performed as per expectations.

These assertions, if proved at trial, will constitute a bona fide defence to the applicant’s claim.

In Timnda Truck Parts (Pvt) Ltd v Autolite Distributors (Pvt) Ltd HB 16-96 CHATIKOBO J had this to say:-

“A plaintiff’s obligation to verify his cause of action and amount in applying for summary judgment obliges him to produce proof of these and to deal with all the relevant matters within his knowledge.”

The verification of the cause of action has been put in issue.  It can hardly be said the defence proffered by the respondent is simply a ploy to buy time and unnecessarily drag a clear and unanswerable claim.  (See Mlambo v Chivendere HH 617/21, CABS v Magodo HH 331/2015)

None of the claims in casu can be said to be unanswerable to justify granting summary judgment in any one of them as submitted by the applicant.

This is a case which requires proper ventilation at trial.  The application for summary judgment was ill-conceived.

I would have considered awarding costs at a punitive scale but for the fact that respondent’s counsel was barred for failure to observe the rules of court.

I however intend to make an award for costs and not leave such to be determined at trial.  This is as a mark of the court’s displeasure at an applicant who persisted in arguing a matter which he ought not to have even sought in the first place.

In the result, I make the following order:-

The application for summary judgment is dismissed with costs.

R. Ndlovu and Company, defendant’s legal practitioners