Carlos Antunes v Corrine Van Rooyen and Corvan Enterprises

The applicant, Carlos Antunes, sued the first respondent (Corrine Van Rooyen) and the second respondent (Corvan Enterprises, a registered company of which the first respondent is a director) for payment of USD$53,764.25. The applicant claimed he had supplied Kapenta fish to the first respondent on credit, and that the first respondent bound the second respondent as co-principal debtor because it benefitted from the supplied goods. The applicant alleged the first respondent acknowledged the indebtedness through electronic mail. The respondents contended that if any debt existed, it was owed by a Mozambican company called Pescas Kapenta Private Limited (of which the applicant was a director) to the second respondent, not by the respondents to the applicant personally. The respondents raised preliminary points including: that the applicant lacked locus standi; that the second respondent had been placed under provisional liquidation and could not be sued without leave of court; and that the applicant was a peregrinus (foreigner) who had not paid security for costs as required by the rules.

• Whether the applicant had locus standi in judicio to bring the claim
• Whether the applicant was entitled to summary judgment
• Whether there were bona fide defences to the claim
• Whether the corporate veil of the company should be pierced to hold the respondents liable
• Whether the second respondent, being allegedly under provisional liquidation, could be sued without leave of court in terms of section 213 of the Companies Act
• Whether the applicant, being a peregrinus, was required to pay security for costs before proceeding with the action

The application for summary judgment was dismissed with costs to remain in the cause.

Summary judgment will not be granted where a defendant raises bona fide defences that establish a reasonable possibility that an injustice may be done if summary judgment is granted without trial. A peregrinus (foreign) plaintiff must comply with the requirement to pay security for costs as required by the court rules. A company under provisional liquidation cannot be sued without first obtaining leave of court in terms of section 213 of the Companies Act [Chapter 24:03]. Where these procedural requirements have not been satisfied, the court cannot grant summary judgment as the defendant would be entitled to succeed in their defence at trial on these grounds alone.

The court confirmed that it has discretion to order substitution of parties at any stage of proceedings in the interests of justice, provided this allows the court to determine the real dispute between the parties and the respondent will not be prejudiced. The court also observed that the corporate veil may be pierced where a corporation is used as a mere alter ego or business conduit of a person, or where the corporate entity has been used as a subterfuge that would work an injustice if observed. The court noted that in summary judgment applications, not every dispute of fact is material, and courts should take a robust and common sense approach, provided there is no real possibility of doing an injustice to the other party. The court referenced the principle that absence of bona fides in conducting litigation may constitute good ground for awarding costs on an attorney-client scale, though this was not applied in the instant case.

This case illustrates the rigorous requirements for obtaining summary judgment in Zimbabwean law. It confirms that summary judgment will not be granted where the defendant raises triable issues that create a reasonable possibility of injustice if judgment is given without trial. The case also reinforces important procedural requirements: (1) that a peregrinus plaintiff must pay security for costs before proceeding with litigation; and (2) that companies under provisional liquidation cannot be sued without leave of court under section 213 of the Companies Act. The judgment demonstrates that even where substantive defences may appear weak, procedural irregularities can provide sufficient grounds to refuse summary judgment and require the matter to proceed to trial.