Savanna Tobacco Company (Private) Limited v Al Shams Global Limited & Anor

### Preamble
Judgment No. SC 25/18
1
Civil Appeal No. SC 235/13
---------


REPORTABLE	(22)

SAVANNA     TOBACCO     COMPANY     (PRIVATE)     LIMITED

vs

AL     SHAMS     GLOBAL     LIMITED     (2)     INTERFIN     BANKING     CORPORATION     LIMITED

SUPREME COURT OF ZIMBABWE

GARWE JA, GOWORA JA & PATEL JA

HARARE, JUNE 18 2015

A. P. de Bourbon SC, for the appellant

L. Uriri, for the first respondent

GOWORA JA:	At the end of the hearing of this matter, we allowed the appeal with costs. An order as set out hereunder was issued:

The appeal be and is hereby allowed with costs.

The judgment of the court a quo is set aside and in its place the following is substituted:

The application for summary judgment is dismissed.

The second defendant is given unconditional leave to defend the plaintiff’s claim.

We intimated that our reasons would follow. These are the reasons.

The brief facts surrounding the matter are that sometime in 2011 and 2012, the appellant caused the drawing of Bankers Acceptances in favour of the second respondent. The Bankers Acceptances were meant to secure a loan advanced to the appellant by the second respondent. In turn, the second respondent then sold the Bankers Acceptances to the first respondent. It is alleged that the first respondent presented the Bankers Acceptances to the appellant and that the latter refused to pay. The first respondent thereafter issued summons against the appellant and the second respondent claiming payment of USD 2 789 137.02.

The second respondent did not enter an appearance to defend and as a result the first respondent obtained judgment in default against the second respondent for the sum claimed in the summons.

The appellant entered appearance to defend and requested further particulars on the claim. Instead of complying with the request for further particulars, the fist respondent filed an application for summary judgment, which application was granted and is the subject of this appeal.

At the hearing of this matter Mr de Bourbon, counsel for the appellant, moved an application for the amendment of the grounds of appeal.

Mr Uriri, counsel for the first respondent, opposed the application. He contended as follows. The amendment sought to attack the judgment on grounds not raised in the court below, which, if they had been raised, would have necessitated the adduction of evidence. He argued further that there was no averment in the court below that the bills were presented and dishonoured. In addition, also being raised for the first time was the issue of whether the first respondent was a holder or possessor of the bills in question. He concluded by submitting that the notice of amendment would prejudice the first respondent by the introduction of new issues.

To counter his argument, Mr de Bourbon submitted that what was before the court a quo was an application for summary judgment. He further contended that, in written submissions filed by the first respondent subsequent to the filing of the notice of amendment, no objection had been raised to the proposed amendments, and that, in fact, the written submissions addressed the merits of the appeal as contained in the original notice and the subsequent amendment. As such, no prejudice could be successfully argued. He suggested that in view of the nature of an application for summary judgment, the court had to consider the validity of the claim.

The court agreed with the stance adopted by the appellant’s counsel. The issue of the nature of the first respondent’s claim is evident in all the papers filed by the parties. The primary objection (as noted by the court) was that the proposed notice of amendment sought to challenge the status of the first respondent as holder of the Bankers Acceptances, which issue the first respondent alleged had not been put in issue in the court below. The court however noted that in the opposing affidavit filed by the appellant in the court a quo, it was specifically averred that the first respondent was not a bona fide holder of the Bankers Acceptances. In the view of the court this was an issue placed before the court a quo and was critical in the determination of the validity of the first respondent’s claim. In the event, the court was not convinced that the amendment would cause prejudice to the first respondent and we allowed the notice of appeal to be amended.

The grounds upon which the appeal in terms of the amended notice is brought are the following:-

1.	The learned judge in the court a quo misdirected herself:-

-	in dismissing the allegation of fraudulent conduct on the part of Interfin Banking Corporation Ltd;

-	by failing to take into account and grant the appellant’s counter-indemnity application under Order 14 r 98, as read with Order 23 of the High Court Rules;

-	by failing to determine whether or not the first respondent was the holder of the Bankers Acceptances for the purposes of being entitled in law to sue the appellant on them;

-	by failing to determine whether or not the appellant had been discharged from liability under the Bankers Acceptances by virtue of non-presentment for payment and the absence of any allegation that notice of dishonour was given as required by law;

-   	in granting summary judgment on the facts of the case instead of referring the matter to trial.

2.	The learned judge of the court a quo erred in the following respects:

- in granting the draft order for summary judgment as prayed for by the first respondent in its original papers without taking into account:

(i)	the abandonment of the interest claim by the first respondent’s counsel in open court;

(ii)	the abandonment of the collection commission claim by the first respondent’s counsel in open court;

(iii) the indemnity application by the applicant and without making a determination in that regard;

- in failing to acknowledge and accept that the underlying transaction in respect of which the Bankers Acceptances were issued related to the Afrexim bank loan and therefore the Bankers Acceptances were not in the lawful possession of the first respondent;

-	in holding, alternatively accepting, that the first      respondent was in law the holder of the Bankers Acceptances as opposed to being merely the possessor as there was no evidence that the second respondent had negotiated those Bankers Acceptances to the first respondent;

-	in finding that since the appellant had endorsed the Bankers Acceptances on the back (of which there was no evidence) such rendered the Bankers Acceptances to be freely negotiable by the second respondent to the first respondent.

- 	in attributing and granting 25 per cent on the Bankers Acceptances face value to the first respondent, where the first respondent is merely a possessor of a negotiable instrument and not a lender to the appellant, and is therefore not entitled to such interest;

-	in failing to hold that recovery of the face value of the Bankers Acceptances from both appellant and second respondent would amount to unjust enrichment of the first respondent.

The essential issues for determination by this Court were:

Whether or not the court a quo should have granted the application for summary judgment; and

Whether or not the court a quo erred in granting collection commission, which claim had been abandoned and, further to this, in awarding interest at a rate not claimed by the first respondent.

As regards the first issue, Mr de Bourbon for the appellant submitted that the first respondent had failed to establish the statutory requisites of its claim and that, as a consequence, the court a quo ought not to have granted the claim for summary judgment.

Per contra, the first respondent contends that it purchased the Bankers Acceptances and as a result it is the legal holder of the same.

It is trite that the procedure for summary judgment is a drastic remedy which can only be granted if the plaintiff’s claim is unassailable and the defendant does not have a bona fide defence to the claim.

I will start with the claim by the first respondent in the court a quo. The plaintiff in an application for summary judgment has an onus to present an unimpeachable claim. In CABS v Ndahwi HH 18/10, MAKARAU JP (as she was then) stated:

“Summary judgment proceedings demand different considerations. This is so because summary judgment is extraordinary in that it takes away from the defendant some of the safeguards that are guaranteed by a full trial. It is a drastic remedy that is based on the supposition that the plaintiff’s claim is beyond impeachment on any material basis and that the plaintiff is merely being held back from getting judgment by the rigors of a full trial which are then curtailed to his or her advantage. For the plaintiff to gain such an unusual advantage over the defendant, he or she must meet certain very stringent requirements as set out by the rules. It has thus been held time and again that plaintiffs wishing to use the speedy procedure of summary judgment must bring themselves squarely within the provisions of the Rules.”

The same sentiments were also expressed by EBRAHIM JA in Nedlaw Investments and Trust Corporation Limited v Zimbabwe Development Bank SC 5/2000, in the following terms:-

“The quintessence of this drastic remedy is that a plaintiff whose belief is that a defendant’s defence is not bona fide and is entered solely for dilatory purposes, should be granted immediate relief without the expense and delay of a trial.”

The law is clear. Summary judgment is allowed to a plaintiff who establishes a clear case and consequently should not be subjected to the expense and delay of going through a trial. The plaintiff must therefore show that his case is unanswerable. It is trite that this a procedure with a limited objective, that in an application of this nature it is an established principle that this drastic relief will be availed to a plaintiff with a clear case and when the proposed defences are bogus or bad in law.

It becomes necessary to decide whether or not the court a quo was correct in its finding that the contention by the first respondent that it was a holder of the Bankers Acceptances and on that basis grant an order for summary judgment in its favour. The first issue to determine relates to the statutory requirements for the negotiation of a bill.

Section 30(1) of the Bills of Exchange Act [Chapter 14:02] (the “Act”) provides as follows:-

“A Bill is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder of the Bill.”

A reading of the section implies that for the Bankers Acceptances to be deemed to have been negotiated as between the first respondent and the second respondent, the manner in which the Bankers Acceptances were transferred should have been such as to make the first respondent the holder of a bill.

The Act, in s 2, defines a “holder” as the payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof. Depending on its content, a negotiable instrument may be payable to order or to bearer. An instrument payable to order is referred to as an order instrument (an order bill, order note or order cheque, as the case may be). Similarly, an instrument payable to bearer is referred to as a bearer instrument (a bearer bill, bearer note or bearer cheque, as the case may be). In casu, the Bankers Acceptances were order instruments as they state:-

‘At 91 days sight pay to the order of ourselves the sum of …’

Therefore, it is only logical, that in order for the first respondent to be a valid holder as defined in the Act, the first respondent should be the payee on the face of the bill itself, or the bill should be endorsed in first respondent’s favour. The first respondent is not the payee and has never laid claim to the Bankers Acceptances on that basis. It contends that it is a holder by virtue of an endorsement in its favour.

As correctly submitted by Mr de Bourbon, there was no evidence on record that the Bankers Acceptances which the first respondent was relying on in its claim had been properly endorsed. According to counsel, to constitute proper negotiation by way of endorsement, the provisions of ss 30 and 31 of the Act have to be complied with.

Section 31 reads as follows:

31 Requisites of valid endorsement

(1) An endorsement in order to operate as a negotiation must comply with the following conditions—

(a) it must be written on the bill itself and be signed by the endorser. The simple signature of the endorser on the bill without additional words is sufficient. An endorsement written on an allonge or on a “copy” of a bill issued or negotiated in a country where “copies” are recognized is deemed to be written on the bill itself;

(b) it must be an endorsement of the entire bill. A partial endorsement, that is to say, an endorsement which purports to transfer to the endorsee a part only of the amount payable, or which purports to transfer the bill to two or more endorsees severally, does not operate as a negotiation of the bill;

(c) where a bill is payable to the order of two or more payees or endorsees who are not partners, all must endorse, unless the one endorsing has authority to endorse for the others;

(d) where, in a bill payable to order, the payee or endorsee is wrongly designated or his name is mis-spelt, he may endorse the bill as therein described, adding, if he thinks fit, his proper signature.

(2) Where there are two or more endorsements on a bill, each endorsement is deemed to have been made in the order in which it appears on the bill, until the contrary is proved.

(3) An endorsement may be made in blank or special and it may also contain terms making it restrictive.

Whether or not there was compliance with the procedures set out in ss 30 and 31 becomes a matter of evidence, which in my view cannot be capable of resolution in an application for summary judgment.

It is common cause however, that the Bankers Acceptances that are on record in this matter do not reflect any endorsements. Although the first respondent contended that it had produced the original Bankers Acceptances in the court a quo, and that those originals reflected such endorsement in respondent’s favour, this submission is not borne out by the record. The first respondent should have attached the endorsed bills to its founding affidavit. This is what the rule regarding summary judgment provides. Order 10, r 64 of the Rules of the High Court 1971 reads:

ORDER 10

SUMMARY JUDGMENT

64. Application for summary judgment

(1) Where the defendant has entered appearance to a summons, the plaintiff may, at any time before a pretrial

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.

(4) Order 32 shall apply to the form and service of an application in terms of this rule and to any opposition

thereto.

The affidavit referred to in subs (2) above is to verify the cause of action and the deponent may, if necessary and as provided in subs (3), attach any documents which support the claim and verify the cause of action.

An appeal lies within the four corners of the record and the Bankers Acceptances that form part of the record are not endorsed. The failure by the first respondent to attach the endorsed Bankers Acceptances to its founding affidavit entitles the court to draw adverse inferences on its failure to adduce such an essential and crucial aspect of its claim.

Assuming the correctness of the contention by the first respondent that the endorsed bills were produced before the court during the hearing, such a procedure would be contrary to r 67 of the High Court Rules which prohibits the production of evidence during the hearing of an application for summary judgment. Rule 67 reads:-

67. Limitations as to evidence at hearing of application

No evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice, nor may either party cross-examine any person who gives evidence viva voce or by affidavit:

Provided that the court may do one or more of the following—

(a) permit evidence to be led in respect of any reduction of the plaintiff’s claim;

(b) put to any person who gives oral evidence questions—

(i) to elucidate what the defence is; or

(ii) to determine whether, at the time the application was instituted, the plaintiff was or should have

been aware of the defence;

(c) permit the plaintiff to supplement his affidavit with a further affidavit dealing with either or both of the following—

(i) any matter raised by the defendant which the plaintiff could not reasonably be expected to

have dealt with in his first affidavit; or

(ii) the question whether, at the time the application was instituted, the plaintiff was or should

have been aware of the defence.

If regard is had to the provisions of r 67, once the first respondent had failed to attach the endorsed bills to its founding affidavit, it was not open to it to produce the endorsed bills at the hearing as alleged in the heads of argument filed before this court. Rule 67 of the Rules of the High Court prohibits the production of evidence except as permitted in the proviso to the Rule. The first respondent did not argue that its production of the bills during the hearing fell within the limited circumstances allowed therein.

In order for a party to successfully sue on it, a bill of exchange ought to be above suspicion. In this regard, the remarks of Lord DENNING in Arab Bank Ltd v Ross 1952 (1) ALL ER 709, at 716, are pertinent. He stated:-

“When is an endorsement irregular? The answer is, I think that it is irregular whenever it is such as to give rise to doubt whether it is the endorsement of the named payee. A bill of exchange is like currency. It should be above suspicion.”

In my view, the Bankers Acceptances should reflect an endorsement in order for the first respondent to sustain its claim against the appellant. It is on this premise that the appellant contends that there being no endorsement on the bills in the appeal record, the first respondent was merely a possessor and not a holder and as such could not successfully sue on them. It seems that the appellant has a plausible defence to the claim, and that for that reason summary judgment could not be granted against it. The respondent’s claim cannot on the facts as presented in the affidavits be said to be unanswerable.

In De Villiers & Ors NO v Electronic Media Network (Pty) Ltd 1991 (2) SA 180, at 183B-C, KIRK-COHEN J stated:

“mere possession of a bill or note does not constitute the possessor a holder; to qualify as such the possessor must either be the payee, endorsee or bearer (see Fourie v Grobbelaar 1947 (3) SA 93 (T) at 95in fin-96). Where a possessor’s title to a bill or note is challenged, as has been in this matter, the Plaintiff ‘has the onus of establishing it. No presumption arises from mere possession’. See Ganie v Parekh and Another 1962 (4) SA 618 (N) at 622F-H.”

In light of the authorities discussed above, it is clear that the court erred and failed to appreciate that legally the first respondent had the onus to establish that it was the holder of the bills due to the absence of endorsements on the said bills.

It was contended by Mr de Bourbon that, before a cause of action can arise on a bill of exchange, it is necessary that there be proper presentment of the bill for payment in accordance with s 44 of the Act. He submitted further that if the bill is not so presented the drawer and any endorser shall be discharged. In this dispute, we can only be confined to the question of presentment as appears on the record.

In para 8 of the declaration the allegation is made that the Bankers Acceptances were “presented for payment on divers occasions” but that the appellant and the second respondent had failed or refused to honour or discharge them. In para 10 of the first respondent’s founding affidavit in support of the claim for summary judgment a bald averment is made that the Bankers Acceptances had matured and been presented for payment to the appellant and second respondent but had not been honoured.

The manner of presentment of these instruments is clearly set out in the Act and the first respondent should have set out in its papers the manner of presentment which accords with the provisions of s 44 of the Act. The prerequisites for presentment are set out as follows:

44 Rules as to presentment for payment

(1) Subject to this Act, a bill must be duly presented for payment. If it is not so presented the drawer and any endorser shall be discharged. A bill is duly presented for payment which is presented in accordance with the following rules—

(a) where the bill is not payable on demand, presentment must be made on the day it falls due;

(b) where the bill is payable on demand, then, subject to this Act, presentment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its endorsement in order to render an endorser liable. In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills and the facts of the particular case;

(c) presentment must be made by the holder, or by some person authorized to receive payment on his behalf, at a reasonable hour on a business day, at the proper place as hereinafter defined, either to the person designated by the bill as payer or to some person authorized to pay or refuse payment on his behalf, if with the exercise of reasonable diligence such person can there be found;

(d) the bill is presented at the proper place—

(i) where a place of payment is specified in the bill and the bill is there presented;

(ii) where no place of payment is specified, but the address of the drawee or acceptor is given in the bill, and the bill is there presented;

(iii) where no place of payment is specified and no address given and the bill is presented at the drawee’s or acceptor’s place of business, if known, and if not, at his ordinary residence, if known;

(iv) in any other case, if presented to the drawee or acceptor wherever he can be found or if presented at his last known place of business or residence.

(2) Where a bill is presented at the proper place and after the exercise of reasonable diligence no person authorized to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required.

(3) Where a bill is drawn upon or accepted by two or more persons who are not partners and no place of payment is specified, presentment must be made to them all.

(4) Where the drawee or acceptor of a bill is dead and no place of payment is specified, presentment must be made to his executor, if such there is and with the exercise of reasonable diligence he can be found.

(5) A presentment through the post office, if in due course, is sufficient.

Having alleged that the Bankers Acceptances had been presented, it behoved the first respondent to lay the basis of its cause of action on the same by showing compliance with the Act as to the manner of presentment. Any failure to present in the manner provided results in the drawer being discharged and, in my view, it is incumbent upon a plaintiff who sues on a Bankers Acceptance to show that it was presented in terms of the law. The appellant contends that the papers before the court do not show that there any compliance with the Act as far as that requirement is concerned. In my view this an issue that the court a quo ought to have considered when the claim for summary judgment was made. It was not and it is one of the necessary steps for a claim based on a negotiable instrument. This court cannot make a definitive decision on the manner of presentment, but if the defence raised by the appellant succeeds in the court a quo then judgment should not have been granted.

Equally, the Act requires that notice of dishonour be given. The Act, in s 48, details how dishonour should be notified and the specific persons to give the notice, the party who should be notified and the manner of such notification. The appellant contends that in this case the respondent has not in its declaration or affidavit adverted to the dishonour envisaged under the Act. The bills themselves do not exhibit any evidence of dishonour. I must agree with the contention by the appellant that the respondent has to establish dishonour of any one of the bills, and that if it has not done so then the appellant has a plausible defence.

To defend a claim for summary judgment a defendant need do no more than establish a plausible defence. In other words, the defendant need only establish a prima facie defence and must allege facts, which if he succeeds in establishing them at trial, would entitle him to succeed in his defence at trial. This principle was stated by ZIYAMBI JA in Kingstons Ltd v L.D Treson (Pvt) Ltd 2006 (1) ZLR 51(S), at 458 F-H, wherein the learned Judge stated:-

“Not every defence raised by a defendant will succeed in defeating a plaintiff’s claim for summary judgment. Thus what the defendant must do is to raise a bona fide defence - ‘a plausible case’- ‘with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence’. He must allege facts which, if established ‘would entitle him to succeed’. See Jena v Nechipote 1986 (1) ZLR 29 (S); Mbayiwa v Eastern Highlands Motel (Pvt) Ltd S-139-86; Rex v Rhodian Investments (Pvt) Ltd 1975 R&N 723(SR). If the defence is averred in such a manner which appears in all circumstances needlessly bad, vague or sketchy that will constitute material for the court to consider in relation to the requirement of bona fides. See Breitbach v Fiat SA (Edms) Bpk 1976(2) SA (T) at 228D-E.”

Consequently, there was an onus upon the appellant to prove that it had a plausible defence to the claim and that the filing of an appearance to defend was not solely for the purpose of delaying proceedings. The test as to what defence a defendant has to establish to defeat an application for summary judgment was set out in Jena v Nechipote (supra).

According to the Oxford Dictionary the meaning ascribed to the word “plausible” is ‘seeming reasonable or probable’. A plausible defence is therefore not one which is acceptable or likely to extinguish a plaintiff’s claim. The court is therefore at that stage not enjoined to look at the prospects of success of the defence, but it is bound to assess whether or not the defence proffered is probable.

Summary judgment is the principal means by which unscrupulous litigants seeking to delay a just claim by defending are frustrated and it is of the utmost importance that its utility should not be impaired. See Beresford Land Plan (Pvt) Ltd v Urquhart 1975(1) RLR 260.

I am satisfied that the defence raised in this case is probable. The Bankers Acceptances on which the claim was based do not appear to have been endorsed. It is incumbent upon the first respondent to establish however that it is the holder. Thus the on the papers before this court, the first respondent as plaintiff did not establish that its claim was unassailable.

In the premises, it would appear that the bills were not endorsed, calling into question whether the first respondent was a mere possessor or whether it was the holder of the bills. The claim presented for summary judgment was therefore not unimpeachable.

The first respondent’s counsel in oral submissions before the court a quo abandoned the claim for collection commission. This is recorded by the learned judge in the following terms:-

“In reply Mr Girach contended that Savannah endorsed the BAs and there was no reference to Afriexim Bank. He further submitted that Al Shams will claim interest at the rate of 23 per cent as mentioned in the summons and that it abandons its claim for collection commission.”

However, notwithstanding the express intention by the first respondent to abandon the claim, the learned judge went on to award collection commission to the first respondent. I believe that the award was in error. It could only have been due to an oversight on the part of the judge.

In any event, even if the claim had not been abandoned, an order for collection commission would in the present circumstances be incompetent. It is settled law that once legal proceedings for the recovery of a debt have been instituted and have proceeded to exhaustion stage, a legal practitioner is no longer entitled to claim collection commission. This is due to the consideration that recovery of the outstanding debt is due to court process as opposed to the services of the legal practitioner outside the court proceedings. This principle was enunciated by SMITH et GILLEPIE JJ in Scotfin Ltd v Ngomahuru (Pvt) Ltd 1997(2) ZLR 567, at 569 C-D, wherein their Lordships stated:-

“Collection of a debt is a task that does not necessarily require recourse to law. Where payment is secured without litigation the function is one that may be accomplished by a debt collector who is not a legal practitioner. The commission that such an agent customarily charges is related to his mandate and not to any legal costs. Even where the debt collector fails in his task and legal process must be resorted to, any expense which the creditor may have incurred in respect of the failed attempts of his debt collector remains a charge as between the creditor and the collection agent and is not part of the creditor and his attorney.”

“The attorney who conducts the case recovers the money at law, and is remunerated by the costs awarded him. He cannot claim against his principal a commission upon the amount of the judgment, nor can the agent, for neither of them has collected the debt. And it would make no difference should the capacities of collecting agent happen to be united in the same individual. Per INNES CJ in D & DH Fraser Ltd v Waller 1916 AD 494.”

Collection commission or collection costs generally are due to an agent who collects on the debt and are assessed on a percentage basis. They are recoverable on the basis of the amount collected and cannot be recovered where there has not been a collection. Collection commission is generally provided for in an agreement and is a penalty in case of default of payment to ensure timeous performance by a debtor in an instrument. The object of the penalty stipulation is to compensate the creditor for the delay in performance by the debtor but is not due for the absolute non-performance on the part of the latter.

The assistance of the court is invoked after the collector has failed. Commission cannot be recovered unless and in so far as it is shown to represent costs of collection for which the creditor is liable to his agent. If the debt has actually been collected without recourse to law, then assuming the percentage rate to be a reasonable one, the full commission would be due. If only a portion of the debt has been collected then a proportionate amount of commission would be due.

The word collection can only mean recovery by means otherwise than by legal process. Since commission is regarded as a penalty stipulation the rationale is that a plaintiff should be entitled to only recover the actual loss sustained through the breach occasioned by the defendant.

In the circumstances of this case, the award of collection commission in favour of the first respondent was not only erroneous, it was also incompetent.

The first respondent claimed interest at the rate of 23 per cent per annum. Inexplicably, the court a quo made an order for interest at the rate of 25 per cent per annum which was never claimed.

In light of the above, it was clear that the learned judge in the court a quo had misdirected herself. The appeal has merit and it was for those reasons that we allowed the appeal with costs.

GARWE JA:		I agree

PATEL JA:		I agree

Kantor & Immerman, appellant’s legal practitioners

Dube, Manikai & Hwacha, appellant’s legal practitioners