Midlands State University v R McDiarmid (Pvt) Ltd and Others

In October 2016, the applicant (Midlands State University) entered into a contract with the first respondent (R McDiarmid (Pvt) Ltd) for the supply, delivery and installation of 5,000 auditorium chairs valued at $461,250. The applicant paid a deposit of $276,750 (60% of the total amount). The parties agreed that the chairs would be delivered within five weeks from the date of payment of the deposit. The first respondent received the deposit but failed to deliver the chairs within the stipulated period or at all. On 13 October 2017, the applicant sued the first respondent and its directors (second to fourth respondents) under section 318 of the Companies Act, seeking to recover the deposit less $33,849.01 owed to the first respondent under other agreements, totaling $242,900.01. The respondents entered appearance to defend and raised a special plea regarding the second to fourth respondents, but acknowledged the contract, receipt of deposit, and failure to deliver within the agreed period. The applicant then brought an application for summary judgment against the first respondent only.

• Whether the first respondent had a bona fide defence to the applicant's claim
• Whether the first respondent's failure to address the merits of the summary judgment application constituted an admission of the claim
• Whether the applicant was entitled to summary judgment for recovery of the deposit paid

The application for summary judgment was granted. The court ordered the first respondent to pay: (a) the sum of $242,900.01; (b) interest thereon at the prescribed rate; and (c) costs of suit.

In an application for summary judgment, a respondent who fails to address the merits of the application and instead focuses on irrelevant preliminary matters has no bona fide defence to the claim. What is not denied in affidavits is taken as admitted. Where a respondent enters appearance to defend but provides no substantive opposition to the claim on the merits, the application for summary judgment will be granted as the respondent is deemed to have entered appearance merely to delay proceedings.

The court observed that the first respondent's statements in its plea regarding delays in payment, changes in specifications, challenges in accessing foreign currency, and changes in ceremony dates were "neither here nor there" and appeared to be attempts to avoid payment. The court noted that if these defences had merit, nothing prevented the first respondent from repeating them in opposition to the summary judgment application. The court also commented that the first respondent's focus on the position of the second to fourth respondents (who were not part of the summary judgment application) "stretches the mind of the court" and suggested this was a deliberate strategy to avoid dealing with the substantive claim.

This case is significant in Zimbabwean civil procedure as it reinforces the principles governing summary judgment applications. It emphasizes that: (1) a respondent must engage with the actual merits of a summary judgment application and demonstrate a bona fide defence; (2) failure to deny material allegations in affidavits constitutes an admission of those facts; (3) entering appearance to defend does not suffice if the respondent fails to provide substantive opposition to the claim; and (4) raising irrelevant preliminary points to avoid addressing the merits will not prevent the granting of summary judgment. The case serves as a warning that courts will not countenance delaying tactics where there is no genuine defence to a claim.