Birria Investments (Private) Limited v Art Deal (Private) Limited and Hanif Khan

### Preamble
HH 266-10
HC 1749/10
BIRRIA INVESTMENTS (PRIVATE) LIMITED
versus
ART DEAL (PRIVATE) LIMITED
and
HANIF KHAN
HIGH COURT OF ZIMBABWE
GOWORA J
HARARE, 28 September 2010 and 12 January 2011
H Nkomo, for the plaintiff
N Bvekwa, for the defendant
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| Rent                                                               | US$ 13 500 |
| Patrimonial loss                                                | US$ 40 000 |
| Medication actual and future                                   | US$ 7 000 |
| Loss of income (for himself)                                   | US$ 13 500 |
| Immigration                                                         | US$ 1 000 |
| Loss of income (first defendant)                                 | US$ 6 000 |
| Defamation                                                         | US$ 15 000 |
| Patrimonial loss (letter to his wife)                             | US$ 2 000 |

Total                                                                 | US$ 98 000 |

He prays that in the event that the court finds that he is liable to pay the plaintiff’s claim he be excused as his claim is higher than that of the plaintiff. He intends therefore to file a counter-claim against the plaintiff.

It is not in dispute that the plaintiff’s representative went to the defendant’s residence accompanied by other people. The letter annexed to his opposing affidavit did not state the number of occasions when this occurred. It is also common cause that when the plaintiff’s legal practitioners were appraised of his conduct they indicated that they had spoken to him and advised him to desist. I must consider therefore whether the defendants can escape liability on the basis of the alleged counter claim being raised by the second defendant.

The leading authority in our jurisdiction on the issue is *Anglo-African Shipping Company (CA) Pvt Ltd v Trinity Engineering (Pvt) Ltd & Anor 1984 (2) ZLR 199 (H)*. At p 206 SMITH J stated:

“Where a defendant has raised a claim in reconvention and the claim is unliquidated, the law to be applied has been stated by CORBETT J (as he then was) in *Stassen v Stofberg 1973 (3) SA 725 (C)* at 728-9. I quote from the official English translation as follows:
 ‘If it is accepted therefore that the defendant can hold plaintiff liable for damages in respect of the alleged defects in the house, the question arises whether defendant’s affidavit discloses a valid defence on this ground. Defendant alleges that he is entitled to a “substantial counter-claim” against the plaintiff for damages caused by the latter’s “defective work”. Although the various defects are fully described, the quantum of this alleged counter-claim is not fully set out. Indeed there is no indication whatsoever of e.g to what extent the value of the property was reduced by the defects or of how much it would cost to repair them. Whatever the amount may be, it is probably less than the balance of the purchase price and the other amounts claimed by the plaintiff. I will accept that in terms of the uniform Rules of Court-particularly Rule 22(4)-a defendant who admits the claim is entitled to raise an unliquidated counter-claim as a defence; that if the counter-claim exceeds the main claim, it constitutes a defence in respect of the whole claim (see Spilous & Co Ltd v Corejejes 1966 (1) SA 525 (C); and if the counter-claim is less than the main claim, the defendant may pay the balance into court and in this way raise a valid defence to whole main claim (see Koornklip Beleggings (Edms) Bkp v Allied Minerals Ltd 1970 (1) SA 674 (C). On the other hand, if a defendant raises an unliquidated counter-claim without in any way establishing its quantum-or indeed making an effort to establish it –and where it appears that, in all probability, the counter-claim will be appreciably less than the main claim, and no payment into court was made such “counter-claim” in my opinion does not disclose a bona fide defence for the purpose of summary judgment.’”.

It is the contention of the plaintiff that the second defendant’s alleged counter-claim is vague, embarrassing, unsubstantiated and that it clearly does not disclose a bona fide defence for the amounts claimed by the plaintiff in the application for summary judgment. The second defendant claims an amount of rent equal to what the plaintiff paid as part of the lease agreement. An amount of $40 000 claimed as patrimonial loss has not been justified under any legal head for damages. The medication referred to as special medication is not specified and has not been linked with the supposed pre-mature birth of a child which event has itself not been linked to any event to do with the plaintiff instead of a medical condition. The loss of income by the defendant has not been justified. If his actions in leasing the property were on behalf of his employer he has then not explained how his actions in letting the property could have led to his suspension for employment. The claim for loss of salary on the part of the defendant as a result of being suspended defies logic when the defendant supposedly deposed to an affidavit on behalf of the first defendant. If he was suspended on what basis then is he deposing to an affidavit on its behalf? Even if he was suspended it would be a tenuous link for that suspension to be premised on the actions of the plaintiff’s agent. The claims for money paid to immigration, the defamation claim and the patrimonial claim in favour of his wife can only have been included to beef up the sums to constitute a counter-claim for purposes of evading the claim for summary judgment. As for the loss of income for the first defendant that would be a claim properly brought by the first defendant and not the second defendant. As for defamation claim arising out of the article in the Herald it would be difficult if not impossible to link the plaintiff with the publication of the article. Granted there is a letter of complaint to the Herald, there is not letter of complaint to the plaintiff over its publication. There is no suggestion that the plaintiff gave a story to the newspaper which then published the article. As suggested by the plaintiff’s counsel the Herald is not under the control of the plaintiff and the cause of action if any, is against the newspaper and not the plaintiff.

In order to succeed in the counter-claim as a defence to the application for summary, a defendant must aver sufficient facts as to disclose a cause of action in the counter-claim. See Koornklip Beleggings v Allied Minerals Ltd (supra). The averments in the opposing affidavit do not in my view disclose a cause of action under any of the heads on which the second defendant purportedly seeks to raise a counter-claim. It is incumbent upon a defendant raising an unliquidated counter-claim as a defence to a claim for summary judgment to establish the counter-claim. See Stassen v Stofberg (supra) at p 730. In my view the counter-claim raised by the defendant in this application does not disclose a bona fide defence and the plaintiff is entitled to judgment as prayed.

In the premises there will be an order for summary judgment in terms of the summons against both defendants jointly and severally, the one paying the other to be absolved together with costs of suit.

Mtetwa & Nyambirai, plaintiff’s legal practitioners
Bwekwa Legal Practice, defendants’ legal practitioners
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