Godfrey Nyamutambo v City Council of Kwekwe

In May 2005, the applicant purchased stand number 2795 LCK Township from the respondent (City Council of Kwekwe) for ZWD811,000.00, which the applicant paid in full. The respondent later discovered it had previously sold the same stand to a third party. The parties entered protracted negotiations wherein the respondent undertook to provide a replacement stand. In January 2016, the respondent offered the applicant three adjacent alternative stands (numbers 2918, 2919, and 2920) with a rates discount to compensate for a shortfall in size (138m²). The applicant rejected this offer, stating the stands were inaccessible and too far from other industries. The respondent then identified other pieces of land but negotiations stalled. The applicant then issued summons claiming the replacement value of the stand (USD162,210.00) as main relief and allocation of an alternative stand as alternative relief. The applicant subsequently sought summary judgment on the damages claim, abandoning the specific performance aspect.

• Whether the applicant's summons properly pleaded a clear cause of action
• Whether an applicant can claim damages for breach of contract without first pleading cancellation of the contract
• Whether an applicant can simultaneously claim damages as main relief and specific performance (allocation of alternative stand) as alternative relief
• Whether the applicant's cause of action was properly verified in the founding affidavit
• Whether a claim for damages involving currency conversion (from Zimbabwe dollars to US dollars) can be disposed of by summary judgment
• Whether summary judgment can be granted where the defendant has already tendered the alternative relief sought

The application for summary judgment was dismissed with costs on an attorney and client scale (higher scale).

For summary judgment to be granted, the plaintiff's claim must be unassailable and based on a clear cause of action. Even where no formal exception has been filed by the defendant, a court may not grant summary judgment where the plaintiff's claim does not reveal a clear and competent cause of action. A plaintiff cannot claim damages for breach of contract without first pleading cancellation of the contract. A plaintiff cannot simultaneously seek damages as main relief while also claiming specific performance (alternative stand allocation) as alternative relief without proper pleading clarifying the cause of action. Claims involving complex questions of quantum, particularly those involving currency conversion and valuation, are not suitable for summary disposal and require trial. The founding affidavit must verify the cause of action pleaded in the summons.

The court observed that the entire matter appeared to be an abuse of court process conducted without due diligence, good faith, or a genuine quest to obtain justice. This was particularly evident where the applicant sought relief (allocation of an alternative stand) that the respondent had already tendered through correspondence, yet the summons contained no averment that the defendant had failed to perform this aspect. The court also noted with concern the confusion created by the applicant's counsel who argued in heads of argument that the agreement was a nullity and that the claim was based on unjust enrichment rather than breach of contract, despite the summons being pleaded as a contract claim. The court commented that if the agreement were truly a nullity, nothing could flow from it, including a claim for damages. The bad drafting and presentation of the plaintiff's case warranted costs on a higher scale.

This case is significant in Zimbabwean civil procedure for clarifying the requirements for summary judgment applications. It emphasizes that: (1) a plaintiff's claim must be unassailable and based on a clear cause of action before summary judgment can be granted; (2) courts may refuse summary judgment even without a formal exception where the claim does not reveal a clear and competent cause of action; (3) a plaintiff cannot claim damages for breach of contract without first pleading cancellation of the contract; (4) a plaintiff cannot simultaneously seek damages as main relief and specific performance as alternative relief without proper pleading; (5) claims involving complex valuation issues (such as currency conversion) are not suitable for summary judgment and require trial; and (6) abuse of court process through bad drafting and lack of due diligence may attract costs on a higher scale.