Central Africa Building Society v Ephison Simbarashe Ndahwi

The plaintiff (Central Africa Building Society) advanced a loan of US$50,000 to the defendant on 29 May 2009, repayable by 29 August 2009. On 24 August 2009, the defendant passed a mortgage bond over property as security. The defendant allegedly failed to pay the first installment due on 7 September 2009 (though earlier in the affidavit it was stated as 1 July 2009). The plaintiff issued summons on 10 September 2009 claiming US$52,579.51 (comprising capital and interest) with a declaration of special executability over the mortgaged property. The defendant entered appearance to defend on 23 September 2009. On 5 October 2009, the plaintiff filed an application for summary judgment supported by an affidavit from its Back Office Operations Manager. At the hearing, the plaintiff applied to amend the declaration to correct the interest amount from $579.51 to $2,579.51, and total claim from $52,058.93 to $52,579.51, alleging typing errors. The defendant opposed both the summary judgment application and the amendment application.

• Whether pleadings can be amended during summary judgment proceedings
• Whether an incorrectly stated claim can form the basis of a summary judgment application
• What constitutes proper verification of a claim in a summary judgment application
• Whether summary judgment is available where the verifying affidavit does not detail how the claimed amount was calculated
• The standard of strict compliance required in summary judgment applications

The application to amend the plaintiff's declaration was dismissed with costs.

1. An incorrectly stated claim cannot form the basis of a summary judgment application as it is not beyond reproach or capable of proper verification. 2. Pleadings cannot be amended in summary judgment proceedings where the claim as originally pleaded contains errors, as this demonstrates the claim is not unanswerable. 3. Summary judgment is an extraordinary procedure requiring strict compliance with rules; courts cannot condone departures from strict observance of Rule 64 (or equivalent rules). 4. Verification of a claim in summary judgment applications requires more than bold restatement - it requires detailed breakdown showing how claimed amounts are calculated, particularly where there is an accounting element. 5. A verifying affidavit filed before an amendment cannot be used to verify an amended claim.

The court observed that the general approach to amendments in ordinary civil proceedings is liberal - courts will endeavour to permit parties to bring material facts before the court and avoid stifling claims on technical grounds. However, this liberal approach does not apply to summary judgment proceedings due to their extraordinary nature. The court also commented that had the deponent properly verified the claim by detailing how the amount was calculated and appropriating payments made to capital or interest, the plaintiff would have discovered the error earlier and could have taken corrective steps before filing the summary judgment application.

This case is significant in Zimbabwean civil procedure (applicable to South African law given similar procedural rules) as it establishes strict requirements for summary judgment applications. It reinforces that summary judgment is an extraordinary remedy requiring strict compliance with procedural rules, and that courts will not condone departures from these requirements. The judgment provides important guidance on what constitutes proper verification in summary judgment applications, requiring detailed breakdown of amounts claimed rather than mere restatement of the claim. It establishes that pleadings cannot be amended during summary judgment proceedings where the amendment reveals the original claim was not unanswerable, as this defeats the very purpose of the summary judgment procedure.