Edward K. Shamutete v Mycroft Engineering (Private) Limited

The plaintiff issued summons against the defendant for payment of $94,465.00 for maize allegedly supplied. The defendant had entered into an agreement with a Zambian company, Linking Africa, whereby Linking Africa would supply white maize to the defendant at $210.00 per metric tonne. Linking Africa initially supplied 402 metric tonnes valued at $84,420.00, of which defendant paid $81,935.33, leaving a balance of $2,484.67. Linking Africa made a further supply of 438 metric tonnes valued at $91,980.00, for which no payment was made. On or about 31 December 2010, Linking Africa ceded its rights to the agreement to the plaintiff. The defendant denied receiving the second consignment of 438 tonnes, alleging it received only 150 tonnes, of which maize valued at $9,660.00 was rotten. Defendant acknowledged owing $20,325.00 for the second consignment but disputed the balance. The plaintiff filed an application for summary judgment, which the defendant opposed.

• Whether the plaintiff has shown a clear and definitive claim against the respondent sufficient to warrant summary judgment
• Whether the defendant has a bona fide defence to the claim
• Whether the plaintiff should be granted leave to file a further affidavit in response to new matters raised by the defendant
• Whether the defendant received the full second consignment of 438 tonnes or only 150 tonnes as alleged
• Whether the defendant had validly discharged its payment obligations for the first consignment

1) The respondent was ordered to pay the applicant the balance of $2,484.64 for the first consignment. 2) The respondent was ordered to pay the applicant the sum of $20,325.00, being the admitted amount for the second consignment. 3) The respondent was ordered to pay interest at the rate of 5% from date of demand to date of payment. 4) The applicant was permitted to proceed to trial on the disputed amounts. 5) Each party was ordered to pay its own costs of suit.

1. Summary judgment is an extraordinary remedy that results in final judgment without affording a party the opportunity to be heard at trial, therefore courts require strict compliance with the procedural rules. 2. Under Rule 67(c) of the High Court Rules 1971, no answering affidavit may be filed by a plaintiff in a summary judgment application without leave of court. 3. The court has inherent discretion to grant leave to file a supplementary affidavit where necessary to enable a party to make full representation of their case, particularly where the defendant raises new issues in opposition that the plaintiff could not reasonably have been expected to deal with in the initial affidavit. 4. For summary judgment to be granted, the plaintiff must show an unanswerable claim; where a defendant raises material facts which, if proved, would disclose a bona fide defence, summary judgment should be refused on the disputed portion. 5. Partial summary judgment may be granted for admitted or clearly unanswerable portions of a claim while allowing disputed portions to proceed to trial.

The court observed that where an applicant successfully obtains leave to file a supplementary affidavit after initially filing it without leave, and the applicant ultimately succeeds in the application, the applicant is not entitled to costs for that aspect of the application. The court also noted approvingly the principle from Juntgen T/A Paul Juntgen Real Estate v Nottbusch 1989 (4) SA 490 (W) that a court has a general discretion inherent to the just performance of its decision-reaching process to grant relief necessary to enable a party to make full representation of their true case, and that amplification and rectification should be equally accessible in summary judgment proceedings, though such discretion must be exercised judiciously.

This case is significant in Zimbabwean civil procedure law as it reinforces the strict procedural requirements for summary judgment applications, particularly the prohibition on filing answering affidavits without leave of court under Rule 67(c) of the High Court Rules 1971. The judgment demonstrates the court's discretion to allow supplementary affidavits where new issues are raised that could not reasonably have been anticipated, while maintaining the principle that summary judgment is an extraordinary remedy requiring strict compliance with procedural rules. The case also illustrates the standard for determining whether a defendant has raised a bona fide defence sufficient to resist summary judgment - material facts which, if proved, would disclose a genuine defence. It confirms that partial summary judgment can be granted for admitted or unanswerable portions of a claim while allowing disputed portions to proceed to trial.