Jackson Muguti v Harambe Holdings (Pvt) Ltd t/a Freshbake

### Preamble
1
HH 210/2013
HC 7422/2010
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JACKSON MUGUTI

versus

HARAMBE HOLDINGS (PVT) LTD t/a

FRESHBAKE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 26 JUNE AND 03 JULY 2013

Applicant in person

Respondent in default

Opposed Application

MATHONSI J:	This is an application in which the applicant, a debt collector, seeks summary judgment against the respondent. The applicant sued the respondent as a cessionary for payment of the sum of US$1 245-00 together with interest thereon at the prescribed rate, collection commission and costs of suit arising out of a hire agreement in which the respondent allegedly hired a motor vehicle belonging to one Chengetai Joseph Chimbo during the period of 	1 June and 7 September 2010.

In its declaration, the applicant alleged that Chimbo’s vehicle was hired to ferry the respondent’s produce to the market on a daily basis at a cost of US$25-00 per day. He further alleged that the total of US$1 245-00 remains unpaid by the respondent and that the said Chimbo ceded his claim to him on 20 September 2010.

Upon receipt of the summons the respondent caused an appearance to defend to be entered necessitating the filing of this summary judgment application. In his founding affidavit, the applicant stated that his claim is unassailable and that appearance has been entered for purposes of delay. He stated further that his claim “ is based on (a) liquidated demand” and that the respondent has not a bona fide defence.

While attaching the deed of cession executed by Chimbo, the applicant has not attached anything else to substantiate the claim. He has not even stated how the sum claimed is arrived at. In its opposing affidavit deposed to by its Finance Director, the respondent took the point that it has been wrongly cited given that it has never had any dealings with Chimbo as it does not even trade in bakeries which is the business of a company known as Trinpac Investments (Pvt) Ltd which is now under liquidation.

The applicant has filed an answering affidavit and a supplementary affidavit without the leave of the court. He is not entitled to do so. Rule 67 of the High Court of Zimbabwe Rules, 1971 makes it clear that no evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice except with the leave of the court. As such leave has not been sought it cannot be granted. Not that the additional evidence would have made any difference. It does not advance the applicant’s case any further.

In terms of r64;

“(1)	 Where the defendant has entered appearance to a summon, 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 belief there is no bona fide defence to the action.

(3)	A deponent may attach to his affidavit filed in terms of subrule (2) documents which verify the plaintiff’s cause of action or his belief that there is no bona fide defence to the action.”

The applicant is a debt collector who is the beneficiary of a cession. He did not enter into any agreement with the respondent, neither did he perform anything in terms of the agreement allegedly entered into between the respondent and Chimbo. He does not even begin to allege that he is privy to what transpired between these parties. Clearly therefore the applicant cannot swear positively to the facts, cannot verify the cause of action and therefore is the wrong person to depose to the supporting affidavit in terms of r64(2). The applicant should have elicited an affidavit from Chimbo.

What is even more important is the fact that the applicant has not even submitted documentary proof of the claim. His belated attempt to produce a letter written by Freshbake in which that institution admits liability to Chimbo does not assist the applicant’s case in any way. As already stated that additional evidence is not accepted as it was adduced without the leave of the court and in breach of r67. More importantly, it does not show any link between the said Freshbake and the present respondent, which has categorically dissociated itself from both Freshbake and Chimbo.

In my view the applicant has not made good case for summary judgment. Accordingly, the application is hereby dismissed with costs.

Bvekwa legal practice, respondent’s legal practitioners.