Intermarket Stock Brokers (Pvt) Ltd v Edward Chikonyora

On 28 November 2005, the applicant issued summons claiming payment of $10,208,059.35 owing in terms of an acknowledgement of debt dated 16 November 2005. The debt arose from Barclays Bank securities that the applicant had procured on behalf of the respondent, which the respondent failed to pay for. The respondent entered appearance to defend on 6 February 2006 and filed a plea on 19 June 2006 denying the amount claimed. The respondent's legal practitioners had earlier written a letter on 6 February 2006 offering to pay the full amount inclusive of interest. Between 15 November 2005 and 19 January 2006, the applicant disposed of a significant number of the respondent's shares, which reduced the respondent's indebtedness. However, the summons did not reflect this reduced amount but rather maintained the original amount from the acknowledgement of debt. The respondent contended that as at 19 January 2006, the indebtedness had been extinguished save for $172,787.00 in interest.

• Whether the applicant was entitled to summary judgment despite the reduction in the debt amount after shares were sold
• Whether the respondent raised a triable issue sufficient to defeat the application for summary judgment
• Whether the applicant's claim was unimpeachable when the summons did not reflect the reduced indebtedness after disposal of shares
• Whether the applicant violated section 57 of the Stock Exchange Act in the manner it disposed of the respondent's shares

The application for summary judgment was dismissed with costs.

In an application for summary judgment, the applicant's claim must be unassailable and accurately reflect the current state of indebtedness. Where an applicant seeks summary judgment for an amount that has been reduced by subsequent events (such as disposal of shares) which the applicant was aware of, the claim cannot be said to be unimpeachable. A defendant raises a triable issue sufficient to defeat summary judgment when he disputes the quantum of the debt on the basis that the summons does not reflect the actual reduced indebtedness after disposal of assets. Summary judgment, being an extraordinary remedy that permits final judgment without trial, should only be granted when it is well established that all proposed defences to the plaintiff's claim are clearly unarguable, both in fact and in law.

The court noted that it did not find it necessary to determine the respondent's other defences, specifically whether the applicant violated the provisions of section 57 of the Stock Exchange Act (which allegedly required the applicant to sell the securities in issue first before disposing of other listed shares) or whether the respondent had a bona fide counter-claim for damages arising from the alleged improper disposal of shares. The court also observed that the applicant's counsel submitted that the question of reduction of indebtedness would arise at the time of execution of judgment, but the court rejected this approach as potentially prejudicial to the respondent.

This case is significant in Zimbabwean civil procedure as it reinforces the stringent requirements for granting summary judgment. It establishes that a plaintiff seeking summary judgment must ensure that the claim amount is accurate and current at the time of seeking judgment, and cannot rely on an outdated acknowledgement of debt when subsequent events (such as disposal of shares) have reduced the actual indebtedness. The case emphasizes that the plaintiff's case must be truly unassailable before the court will grant this extraordinary remedy, and that any arguable defence regarding the quantum of the claim constitutes a triable issue. It also demonstrates the importance of candour and accuracy in summary judgment applications, particularly in commercial and securities transactions where the debt amount may fluctuate based on disposal of assets.