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

The applicant commenced action proceedings under case number HC 996/17 against the respondents claiming US$45,057.54 being the balance outstanding on an alleged debt of US$60,770.00. The applicant's summons was based on a loan agreement allegedly advanced to the 1st respondent, with the 2nd, 3rd and 4th respondents having signed an "Individual Guaranty". However, in the summary judgment application, the applicant relied on an acknowledgment of debt rather than the loan agreement pleaded in the summons. The respondents defended the matter, denying the existence of a loan agreement and instead averred that there was a joint venture agreement between the parties involving Mr Lepar (a director of the applicant) who had injected monies. The respondents provided detailed averments about the failed joint venture, including exact amounts contributed and terms of repayment, and raised issues regarding the interest rate being contrary to the Money Lending and Rates of Interest Act.

• Whether a summary judgment application must be based squarely on the averments and cause of action pleaded in the summons
• Whether a founding affidavit that relies on a different cause of action (acknowledgment of debt) from that pleaded in the summons (loan agreement) can sustain a summary judgment application
• Whether the respondents had established a bona fide defence to the claim
• Whether the applicant had established an unanswerable case against the respondents

The application for summary judgment was dismissed with costs.

A summary judgment application must be based squarely on the averments and cause of action pleaded in the summons. A founding affidavit in a summary judgment application that relies on a different cause of action from that pleaded in the summons is fatally defective and cannot provide a basis for granting summary judgment. Where respondents raise a bona fide defence that is neither vague nor fanciful, and which if proved would constitute a complete defence, summary judgment must be refused. Summary judgment is a drastic remedy that will only be granted where the applicant has an unanswailable case or where the defendant's proposed defence is clearly unarguable both in fact and in law. A defendant need only show a prima facie defence or a mere possibility of success to be entitled to defend the action.

The court observed that summary judgment constitutes "an extraordinary invasion of a basic tenet of natural justice" (the audi alteram partem principle) and will not be lightly resorted to. The court cited with approval the principle from Chrismar (Pvt) Ltd v Stutchbury that the special procedure for summary judgment was conceived so that a mala fide defendant might summarily be denied the benefit of being heard, but only under onerous conditions. The court also noted, without deciding the issue, that the respondents had raised a defence based on the Money Lending and Rates of Interest Act which the applicant had failed to address.

This case reinforces fundamental principles of civil procedure in Zimbabwe (and by analogy South African law given the shared legal heritage) regarding summary judgment applications. It emphasizes the critical requirement that summary judgment applications must be strictly based on the cause of action pleaded in the summons, and that a founding affidavit that introduces a different cause of action is fatally defective. The case also reaffirms that summary judgment is an extraordinary remedy that invades the basic tenet of audi alteram partem (the right to be heard), and courts will not lightly grant such relief unless the defendant's defence is clearly unarguable both in fact and in law. The judgment serves as a reminder to practitioners that technical compliance with procedural requirements is essential in summary judgment applications, and that defendants need only show a prima facie defence or a mere possibility of success to be granted leave to defend.