Patricia Munhumumwe and 19 Others v Qoki Zindlovukazi Investments (Private) Limited and Another

### Preamble
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HB 178/25
HCBC 560/24
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PATRICIA MUNHUMUMWE

AND

NORGET NCUBE

AND

SINDISO BHEBHE

AND

ISABEL SUKOLUHLE KANYISAI

AND

VERILY NKOMO

AND

MONICA MANATSE

AND

SAMKELO KWANIKE

AND

DREAM ALIVE-CO-OPERATIVE (PVT) LTD

AND

BRILLIANCE MOYO

AND

PATIENT BANDA

AND

CHARITY MOYO

AND

GIVA VUNDLA

AND

THANDEKILE KAWENYA

AND

SICHELESILE NKOMAZANA

AND

NKOSINOTHANDO MXOTSHWA

AND

SIBONISIWE LUNGA

AND

SIKHANYISIWE MPOFU

AND

RENE NTOMBIYELANGA TSHULU

AND

NOKUTHULA NCUBE SIBANDA

AND

SIBONGINKOSI NDIMANDE

AND

SHINGIRAI KAMUDYARIWA

AND

BEKEZELA NKALA

AND

CHIEDZA ZIYAMBE

AND

TERESIA SIBANDA MPOFU

AND

TRACY ANNE KOLTS-WEBB

AND

CAROLINE PHANSI

AND

CHARITY NDLOVU

AND

SANDISILE NONTOBEKO SIBANDA

Versus

QOKI ZINDLOVUKAZI INVESTMENTS (PRIVATE) LIMITED

AND

SINDAKU DEVELOPERS (PRIVATE) LIMITED

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 13 OCTOBER 2025

Opposed Application – Summary Judgment

Ex tempore judgment

M.E.P Moyo, for the applicants

S. Mashavakure, for the 1st respondent

No appearance for the 2nd respondent

KABASA J: 	After hearing argument in this application for Summary judgment, I granted the application against the 1st respondent, with costs.  I gave my reasons in an ex tempore judgment.  I have now been requested for written reasons.  These are my reasons:-

On 17 April 2024 the applicants (plaintiffs) issued out summons against the respondents claiming payment of US$154 000 jointly, and severally, the one paying the other to be absolved.

The US$154 000 was paid to the 1st respondent specifically for the development and construction of roads on a piece of land being the remaining extent of subdivision B of Willsgrove situate in the district of Bulawayo measuring 30,6353 ha held under Deed of Transfer No. 1882/2013.

The applicants paid the said amount following the purchase of the property which was so purchased through the 1st respondent.  The land had to be subdivided and in pursuance of that US$154 000 was paid to the 1st respondent who was to hold it in trust until transfer of the property.  The work was to be tendered out and a contractor chosen from those who would have responded to the tender.

The 1st respondent, contrary to the agreement, handed over the US$154 000 to the 2nd respondent before a tender was flighted and the property transferred.  This was not with the applicants’ approval.  The work was not performed and the applicants demanded the US$154 000 which the respondents failed to pay.

The 1st respondent entered an appearance to defend but the 2nd respondent did not and was duly barred.  Summary judgment could therefore not be sought against the 2nd respondent and at the hearing of the matter, 2nd respondent did not appear and the opposing papers were expunged from the record as they ought not to have been filed in the first place.

The 1st respondent’s opposition was hinged on the contention that the payment of the money to the 2nd respondent was done on behalf of the applicants.  The 2nd respondent did some work and 2nd respondent had to clarify the nature of such work.  The payment of the US$154 000 was without malicious intent and the 1st respondent is in the process of claiming a refund from the 2nd respondent due to non-fulfillment of the mandate 1st respondent gave to 2nd respondent.  Until such refund the 1st respondent is in no position to pay the applicants.

The issue therefore was whether the 1st respondent had a bona fide defence in the circumstances.  The requirements to be satisfied in an application for summary judgment were aptly captured by both counsel.

The court has to be satisfied that the entry of appearance to defend is solely for the purposes of delay.  Summary judgment is a drastic remedy as it effectively closes the door on the other party.  (Tavenhave  & Machingauta Legal Practitioners v The Messenger of Court S 53-14, Bastin v Madzima S 37-20, Oak Holdings v Chiadzwa S 136-85).

The 1st respondent does not deny receiving the US$154 000 from the applicants.  The purpose for which that money was to be used is also not denied.  The fact that that purpose was not realised is equally not denied.

The 1st respondent did not disclose with any degree of clarity what its defence is.  A sweeping statement to the effect that the US$154 000 was paid to the 2nd respondent who did some work was what could be gleaned from the opposing affidavit deposed to by a Director of the 1st respondent.  The 1st respondent’s defence is at best a bare denial. It amounts to a glossing over of the issues. One gets the impression that the 1st respondent is merely trying to evade liability by making vague statements.

The inescapable impression created by the 1st respondent is that the refund to the applicants is due but can only be paid after 1st respondent is refunded by the 2nd respondent.

What is it that the 2nd respondent did, if anything?  The 1st respondent merely says the 2nd respondent must explain what it did.

Are bare denials a bona fide defence capable of defeating an application for Summary judgment?  I think not.

The 1st respondent does not dispute the amount, does not dispute receiving it and does not dispute that work that was supposed to be done in order to fulfill the obligations stipulated before issuance of a sub-division permit was not done.  The vague explanation that “some work” was done with no particularity of what work it was cannot amount to a bona fide defence.  The admission that the applicants are due for a refund puts paid to any semblance of a possible defence.

Granted Summary judgment is a drastic remedy but where it is meant to prevent an abuse of court process, such a remedy ought to afford an applicant who has an unassailable claim a quick remedy without necessarily expending money and time going through the motions of a trial.  (Christmas (Pvt) Limited v Stutchburg & Anor 1973 RLR 277, Meek v Kruger 1958 (3) SA 154 (1), Nyangoni v Mugawazi HH 809-22.)

I found no ‘mere possibility of success’ on 1st respondent’s part to warrant allowing the matter to proceed to trial. (Niri v Coleman & Ors 2002 (2) ZLR 580) I equally found no possibility of an injustice being done against the 1st respondent (Siphambili & Anor v Siphambili HB 209-23), by the grant of the application for summary judgment.

The 1st respondent, with its vague statements and bare denials, did not show that it has a prima facie defence which should be given a chance at trial.  (Hales v Doverick (Pvt) Limited 1998 (2) ZLR 235.)

I had occasion to ask counsel for the 1st respondent what she saw as the triable issues which would be referred to trial.  Counsel submitted that the parties’ agreement stipulates that a 7 day notice period should be given to the one in default to rectify such default before litigation.  The lack of bona fides could not have been clearer as such was never raised in opposing the application.  This was demonstrative of the attempts at finding something to say in order to defeat the summary judgment application.

A matter cannot possibly be referred to trial to determine “whether or not the plaintiffs must await a refund to 1st defendant by 2nd defendant before their refund is processed.”  There are no triable issues and whether the 1st and 2nd respondent will eventually resolve their own issue as regards what the 2nd respondent allegedly did, is not a matter to be elevated into a bona fide defence for purposes of defeating the summary judgment application.

I therefore held the view that the 1st respondent had no bona fide defence to the applicants’ claim and appearance to defend was entered for the sole purpose of buying time.

In light of the observation I had already made regarding the 2nd respondent’s participation or inclusion as a party in the Summary judgment application, the order granted was amended so as to exclude the 2nd respondent.

As regards costs, I was not persuaded that a case had been made for punitive costs and so declined to award costs at that scale.  I found nothing deserving of censure to warrant punitive costs.

It is for the foregoing reasons that I granted the application for summary judgment.

Nkomo and Sibanda, plaintiffs, legal practitioners

Ncube and Partners, 1st defendant’s legal practitioners

Shenje and Company, 2nd defendant’s legal practitioners