Paddington Kapfudza v Lawrence Billiat and The Registrar of Deeds and The Sheriff of the High Court NO

### Preamble
1
HCC 20/25
REF CASE NO: HCC 47/24
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PADDINGTON KAPFUDZA
Versus
LAWRENCE BILLIAT
and
THE REGISTRAR OF DEEDS
and
THE SHERIFF OF THE HIGH COURT NO.

IN THE HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI 28 February - 26 March 2025

Opposed Application

D. Chikangwani, for the applicant
C. Nhemwa, for the 1st respondent
No appearance for the 2nd & 3rd respondents

BACHI MZAWAZI J: [1] This application for summary judgment, which on the face of it, is based on an instalment sale agreement between the applicant and first respondent over property house stand number, 978 Wattle Close, West View, Kadoma, also known as number 978, of 960 Gatooma Township, Gatooma.

[2] Contrary to the challenge by the first respondent, all the essential elements of a valid agreement of sale are present, though some not as detailed. The property description, that is the merx itself, the purchase price, pretium, the agreement, consensus ad idem, the payment methods, and all the pertinent provisions are included in the document that has been produced before the court.

[3] The delivery has been signified by the tendering of the original title deed of the property alongside, the first respondent’s wife’s written and signed consent to the sale and marriage certificate pending actual transfer.

[4] The vacant possession clause though bundled into one clause, with the date of transfer, as well as, the date of payment of the last instalment is also part and parcel of the said agreement.

[5] Indeed the conveyancing clause, as pointed out is important but its exclusion cannot invalidate an agreement of sale as there is mention of transfer in lesser detail within the embodiment of the agreement itself.

[6] In addition, an acknowledgment of receipt in the sum of USD10.000, paid on the 20th of September 2023 signals the payment of the last amount due in accordance with the dates in the principal contract of sale. Clearly, on the face of it, there is evidence of an agreement of sale of the property in question. It is against this background that the remedy of summary judgment for the eviction of the first respondent from the property in question is sought. Notably, second and third respondents are cited in their official capacities only.

[7] In rebuttal, the first respondent denies that what is before the court is a genuine agreement of sale but a disguised usurious loan advancement transaction, in fraudem legis.  He submits that he was in financial dire straits which led him to borrow the sum of USD10 000.00 from the applicant with an exaggerated interest rate. He does not deny signing both the agreement of sale and the acknowledgment of receipt as mentioned above, but states that those were the pre-requisites of the loan arrangement.

[8] Whilst not giving an explanation as to why he would sign a receipt of acknowledgment of payment on the 20th of September, 2023, when the initial agreement of sale had been concluded 24th of February 2023, the first respondent maintained that not only does he have a bona fide defence, there are also triable issues. He challenges that the value of USD70 000, in the agreement of sale is not the true value of his property as evidenced by an evaluation report he much later obtained in July 2024 pegging the house in the range USD150 000.00. He also wanted to be given an opportunity to call the legal practitioners who drafted the agreement of sale and were privy to the circumstances surrounding the transaction.

[9] In that regard, citing the case of, Eastlea Hospital (Private) Limited v Martha Ndoro and Ors , Mr Nhemwa, for the first respondent submits that they do have a bona fide defence no matter how it may apparently seem to be remote or far -fetched.

[10] The applicant in turn, argues that he has an assailable case against the 1st respondent whom he alleges has no bonafide defence to his claim against the backdrop of the two documents referred to above.

[11] It is the applicant’s case that even though the rules as provided for in rule (30)(1) of the High Court rules 2021, permit an application for summary judgment at any time after the entering of an appearance to defend but before the pre-trial conference, they wonder why if the first respondent had a genuine defence, he did not file his plea to that effect. This application was launched well over a month after the appearance to defend had been entered.

[12] In most jurisdictions the defendant’s defence is borne by their plea. In reference to their rules, which obviously vary materially with our rule (30)(1) above, in MJG Logistics (Pty) Ltd v Foloyi Construction and Projects High Court Mpumalanga Division SA2863/2023, it was noted that,

“It is clear that in a plea a defendant is under a duty to set out all material facts relied upon. He must disclose fully the nature and grounds of his defence as well as the material facts relied upon”.

[13] It is Mr Chikwangwani, for the applicant’s, further contention that, it is even more surprising that up to the date of the hearing of this application no efforts have been made by the first respondent to liquidate not even a single cent, be it that of the alleged illegal contract in the form of capital amount or the so-called interest.

[14] The applicant is even more startled by the failure by the first respondent to explain away the acknowledgement of receipt as to what it was he received in September as opposed to the amounts he received upon the conclusion of the agreement of sale in February of the same year.

[15] Of note, the answering affidavit which the applicant had filed in response to the first respondent’s notice of opposition was successfully challenged as a preliminary objection. It was against the dictates of rule 30(7) of the High Court rules. According to that provision, the applicant’s case, falls or stands on the founding affidavit. No new facts or evidence, as is the trite position of the law in civil suits, are to be introduced through or by way of an answering affidavit. See, Mangwiza v Ziumbe N.O. & Anor 2000(2) ZLR.

[16] Be that as it may, the overriding issue for consideration is the applicant is entitled to the relief sought?

[17] On analysis, it goes without saying, that a summary judgment is an interlocutory measure against recalcitrant litigants with no valid defence but playing delaying tactics.  If successful it has a final effect of disposing the matter there and then, thereby terminating action proceedings without further ado, whereas if not, the trial procedure takes its full course.

[18] It entails that the trial will be curtailed and the audi alteram rule to some extent infringed This curtailing of proceedings without giving the other party the full benefit of trial is how the doctrine earned the term ‘a drastic remedy’ to be sparing applied.

[19] The Supreme court in the case of Tavenhave and Machingauta Legal Practitioners v The Messenger of Court SC53/14, highlighted as follows,

“Summary judgment is a drastic remedy which will only be granted where it is clear that the defendant has no bona fide defence and has entered appearance to defend solely for purposes of delay.  Because of the drastic nature of the remedy a court will not grant it if there is any possibility that the defence raised on the papers might succeed.”  See, Pitchford Investments Pvt Ltd vs Muzariri 2005 (1) ZLR (H) 1.

[20] In Majoni v Ministry of Local Government and National Housing 2001 (1) ZLR 143 (S) the Supreme Court stated thus:

“The principles applicable in a summary judgment application have been well documented.  The quientessence of this drastic remedy is that the plaintiff, whose belief it is that the defence is not bona fide and entered solely for dilatory purposes, should be granted immediate relief without the expenses and delay of trial.”

[21] The same was amply captured in the most recent Supreme Court decision, Eastlea Hospital (Private) Limited v Martha Ndoro and Ors SC116/23.

[22] Whilst the law requires the plaintiff to advance and prove an unassailable claim, it also recognises the defences available to the defendant in such dire situations. See, Jetzone Consultancy (Pvt) Ltd t/a Design Technologies Business Solutions versus Twenty Third Century Systems (Pvt) Ltd.

[23] These were well articulated in the case of Siphambili and Anor v Simphambili HB209/23. Citing the cases of Jena v Nechipote 1986 (1) ZLR 29 (SC); Pitchford Investments (Pvt) Ltd v Muzari 2005 (1) ZLR (H) and Christimas Stutchburgh & Anor 1973 (1) RLR 279, TAKUVA J, outlined the defendant’s defence in an application of this nature as follows;

“According to these cases, the entire defendant has to establish in order to succeed in having an application for summary judgment dismissed is that;

(a) There is a mere possibility of success.

(b) Respondent has a plausible case

(c) There is a triable issue

(d) There is a reasonable possibility that an injustice may be done if summary judgment is granted.”

[24] In casu, as argued by the applicant, there is indeed, before the court, an agreement of sale entered into by the parties dated the 24th of February 2023, over the said property. Contrary to the argument by Mr Nhemwa, for the first respondent, as already noted, all the essential elements of an agreement of sale are well spelt out. There is the description of the merx, the pretium, or purchase price and most but not all of the essential clause synonymous to such agreements. The signing formalities and the handing over of the title deeds alongside other related documents all point to well concluded agreement of sale. The failure to include the conveyancing and vacant possession clauses as a standalone is cured by the clause which mentions both but in lesser detail. As it appears the form of the agreement cannot be faulted.

[25] In addition, the first respondent did not proffer reasons as towhy he did not file a plea a month after the issuance of summons. Further, he failed to establish the link between the usurious loan claimed to have been advanced in February 2024 to the acknowledgment of debt he signed in September 2024. All what the first respondent sought to rely on is a valuation report compiled in July 2024 well after the summons had been issued.

[26] Whilst the form cannot be questioned, it is the substance that is in issue. This is the whole concept behind simulated contracts. Courts do not simply endorse or rubber- stamp such contracts. They penetrate or pierce the corporate veil in order to perceive the true intentions of the parties. They look at the substance not the form. Courts a wary of money lending sharks, who enter in disguised contracts in order to circumvent the law. These people do not want to register their enterprises so that they legally mortgage properties as securities. See, Zangarai v Zimbabwe Revenue Authority and Another SC113/21, Silonda v Nkomo SC6/22.

[27] In Long Oak Ltd v Edwork (Pty) Ltd 1994 (3) SA 370 (SE) at 375 -379, it was highlighted that, if parties make an agreement as a sham or pretense, for instance, to mislead the fiscus, then they do not intend to create obligations and their simulated agreement is in valid.

[28] Zandberg v Van Zyl 1910 Ad 302, Vasco dry Cleaners v Twycross 1979(1) Sa 603 (A) and Michau v Maize Board 2003 (6) SA 459(SCA), are all authorities to the effect that, from a different spectrum, if the transaction is genuine a court will give effect to the underlying transaction.

[29] I must hasten to say that, I am not called to make a determination on the true nature of the contract between the parties before me in this sitting. This is fodder for the trial court. It suffices to note that, whether an agreement is genuine or not, depends on a consideration of all facts and circumstances surrounding the contract.

[30] The appropriate court will be enjoined to examine the transaction as a whole, taking on board any unusual features or characteristics to unpack the true intention of the parties. See, Roshcon (Pty) Ltd V Anchor Auto Body Builder CC and Others 2014 (40 SA 319. (SCA) Genet mining (Proprietary limited v Zimslate Quartzite (Private) LimitedHH375/16

[31] From that angle, the first respondent has proffered a defence of a simulated contract which from the look of it seems bona fide. It is a valid defence at law. Moreover the law, as pronounced in the Eastlea Hospitals case above states that even ‘a mere possibility’ of success suffices as a defence to the application for summary judgment.

[32] In Niri v Coleman & Ors 2002 (2) ZLR 580 (H) at 585, the phrase “a mere possibility of success” was defined in the following terms;

“These phrases merely mean that the defendant has to depose to a defence which, if proved at the trial would constitute a good defence to the plaintiff’s claim. The defence itself must be bona fide. Even though the rule is not concerned with the defendant’s bona fides, if he is not bona fide then his defence too cannot be bona fide. See Erasmus Superior Court Practice at p31-224. A defence raised against the grant of summary judgment application must also be valid at law.

[33] In Jena v Nechipote 1986 (1) ZLR 29 (S) it was held 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 reasonable possibility that an injustice maybe done if summary judgment is granted".

[34] The following cases, Davis v Terry 1957 (4) SA 98 (SR); Rex v E   Rhodian Investments Trust (Pvt) Ltd 1957 (4) SA 631 (SR); Kassim Brothers (Pvt) Ltd v Kassim & Anor 1964 (1) SA 651 (SR); Shingadia v Shingadia 1966 (3) SA 24 (SR); Webb v Shell Zimbabwe (PvT) Ltd 1982 (1) ZLR 102 Mbayiwa v Eastern Highlands Motel (Pvt) Ltd SC 139-86 are also instructive.

Disposition

[35] Having canvassed the facts against the applicable legal frame work, unfortunately, I am inclined to deny the relief of summary judgment sought. The first respondent has raised the defence which has some possibility of success at trial. The Supreme Court in the Eastlea Hospital case above, has spoken.

[36] Further, this matter involves a family home, of a considerable value going by the valuation report. If this relief is granted summarily there is a reasonable possibility that an injustice may be done. It is just and fair that the matter proceeds to trial.  The applicant suffers no prejudice at this stage. If his claim is as solid he will have the last laugh at the conclusion of a full ejectment trial.

[37] There is no justification for costs at a higher scale as claimed. Each litigant must have their day in the trial court without the constraints of punitive legal costs.

Accordingly,

It is ordered that:

The application for summary judgment is hereby dismissed.

Each party to pay its own costs.

Chikwangwani and Tapi Attorneys, applicant’s Legal Practitioners

C. Nhemwa and Associates Legal Practitioners, 1st respondent ‘s Legal Practitioners