Arenel (Pvt) Ltd v Form Pac (Pvt) Ltd and Others

The applicant commenced action against the respondents under case number HC 996/17, claiming US$45,057.54 being the balance outstanding on an acknowledgment of debt in the sum of US$60,770.00. The applicant alleged this amount was based on a loan advanced to the 1st respondent, with the 2nd, 3rd and 4th respondents having jointly signed an "Individual Guaranty". The summons and particulars of claim detailed a loan agreement between the parties. However, in the summary judgment application, the applicant relied on an acknowledgment of debt rather than the loan agreement. The respondents defended the matter, denying the existence of a loan agreement and instead alleging that the monies arose from a failed joint venture agreement in which Mr Lepar (a director of the applicant) had injected funds. The respondents provided detailed particulars about the joint venture, amounts contributed, and terms of repayment. They also raised issues about the interest rate being contrary to the Money Lending and Rates of Interest Act.

• Whether the founding affidavit in a summary judgment application must be based squarely on the cause of action pleaded in the summons
• Whether the applicant had established an unassailable case warranting summary judgment
• Whether the respondents had shown a bona fide defence to the claim
• Whether summary judgment should be granted where the founding affidavit is based on a different cause of action (acknowledgment of debt) than that pleaded in the summons (loan agreement)

The application for summary judgment was dismissed with costs.

A founding affidavit in a summary judgment application must be rooted in the cause of action as declared in the summons. A founding affidavit that bases its action on a different cause of action to that pleaded is fatally defective and cannot provide a basis for granting summary judgment. Summary judgment is a drastic remedy which should be granted only if the applicant has an unassailable case or conversely where the respondents have no arguable case before the court. Where respondents have shown a bona fide defence that is neither vague nor fanciful and which, if proved, would constitute a complete defence, summary judgment cannot be granted.

The court cited with approval the principle from Chrismar (Pvt) Ltd v Stutchbury 1973 (1) 277 (G) that summary judgment involves an extraordinary invasion of the basic tenet of natural justice (audi alteram partem) and will not be lightly resorted to. The court also noted the established principle that where a mere possibility of success exists, leave to defend must be given to the defendant, as the defendant is only required to show a prima facie defence, not a probability of success. The court observed that the applicant was completely silent regarding the respondents' detailed defence about the joint venture and damages, which called for a direct response but received none.

This case reinforces the procedural requirements for summary judgment applications in Zimbabwean law. It establishes that there must be strict consistency between the cause of action pleaded in the summons and the basis of the summary judgment application. The case demonstrates that summary judgment will not be granted where there is a mismatch between the pleaded cause of action and the evidence relied upon in the founding affidavit. It also reaffirms that summary judgment is a drastic remedy requiring an unassailable case, and that where respondents raise a detailed, non-vexatious defence, they must be allowed to defend the matter at trial. The judgment serves as a reminder to practitioners of the importance of proper pleading and consistency in summary judgment applications.