Comfort HR Strategies, a South African company, sued Dairibord Zimbabwe (Private) Limited under case number HC 2591/20 for refund of USD110,000.00 based on unjust enrichment. In October 2018, the parties entered into a verbal agreement whereby Comfort would pay USD500,000.00 on behalf of Dairibord to Dairibord's foreign suppliers for input materials. In return, Dairibord was to pay Comfort a Zimbabwean dollar equivalent at a premium, agreed at ZWL$1,250,000.00, which was held in trust by Samukange Hungwe Attorneys pending performance. Comfort paid USD110,000.00 to Dairibord's suppliers, but Dairibord withdrew ZWL$975,000.00 from the trust account. Comfort alleged repudiation of the agreement and claimed unjust enrichment. Dairibord filed a plea denying repudiation and the unjust enrichment claim, arguing that Comfort breached the contract by failing to pay the entire USD500,000.00 and that the USD110,000.00 was equivalent to ZWL$275,000.00 left in trust for Comfort to redeem. Dairibord then brought this application for summary dismissal of Comfort's action under Order 11 rule 75(1) of the High Court Rules 1971, claiming the action was frivolous and vexatious.
The application for summary dismissal was dismissed with costs on the ordinary scale.
For an action to be summarily dismissed as frivolous or vexatious under Order 11 rule 75(1) of the High Court Rules 1971, the applicant must objectively demonstrate that the action is impossible to succeed, hopeless, manifestly groundless, or utterly without foundation. The test is objective. Where contradictory versions of material facts exist between the parties, particularly regarding the terms of an agreement and its performance, triable issues exist that preclude summary dismissal. The onus rests on the applicant for summary dismissal to prove the action is unsustainable; the respondent need only demonstrate the existence of a triable issue, a plausible case, or a mere possibility of success. Documentary evidence that contradicts the applicant's position, even when emanating from the applicant's own legal representatives, can establish a triable issue. Questions of whether a party repudiated a contract and whether conditions precedent to accessing funds were met constitute triable issues unsuitable for summary determination.
The court observed that costs are at the discretion of the court and that punitive or higher scale costs should only be awarded where it is demonstrated why such costs are justified. Mere success in opposing an application does not automatically warrant costs on a higher scale. The court also implicitly noted that inflation-related disputes in currency exchange contexts, particularly in the Zimbabwean economic context involving the transition to multi-currency and the introduction of instruments like SI 33 of 2019, may give rise to genuine contractual disputes that are not frivolous merely because they involve currency fluctuations.
This case affirms the principle that summary dismissal of actions under Order 11 rule 75(1) of the High Court Rules 1971 (now superseded) is an extraordinary remedy that should only be granted in exceptional cases where an action is objectively hopeless or manifestly groundless. It illustrates the courts' protection of the elementary right of free access to court and the requirement that an applicant for summary dismissal must clearly demonstrate the action is utterly without foundation. The case also demonstrates that where contradictory versions of facts exist and there are genuine disputes regarding the interpretation and performance of contractual obligations, these constitute triable issues that must be determined at trial rather than through summary dismissal. The judgment reinforces the low threshold a respondent must meet to resist summary dismissal - merely showing a triable issue, a plausible case, or a reasonable possibility of success is sufficient.