Pamuka (Pvt) Limited v Nedshine Investments (Pvt) Limited and Others

The applicant and first respondent entered into an oral agreement on 3 October 2019 whereby the first respondent was to purchase and supply 516 metric tonnes of fertiliser for the applicant within 30 days of payment. The applicant paid the full purchase price of US$321,726.00 into an account in South Africa, secured by a loan from its bankers. The first respondent only supplied 169.950 metric tonnes, leaving a balance of 346.050 metric tonnes outstanding. The applicant terminated the contract and sought a refund. The second and third respondents allegedly bound themselves as sureties, and the fourth and fifth respondents offered their property (stand number 997 Glenlorne) as security. The applicant served a notice of demand for US$211,314.47 (refund for undelivered fertiliser, interest, and penalties). When the respondents failed to pay, the applicant issued summons and subsequently applied for summary judgment against all respondents. The respondents opposed the application, claiming supervening impossibility due to Covid-19 lockdown regulations and challenging the joinder of the second to fifth respondents as sureties.

• Whether the applicant had established an unassailable claim for summary judgment against all respondents
• Whether the second and third respondents validly bound themselves as sureties and co-principal debtors
• Whether the fourth and fifth respondents validly bound themselves as sureties through their sworn affidavit offering property as security
• Whether the property could be declared especially executable
• Whether the first respondent acknowledged indebtedness to the applicant
• Whether the respondents had established a bona fide defence to the claim

1. The claim for summary judgment against the second, third, fourth and fifth respondents was dismissed. 2. Summary judgment to declare the property (stand number 997 Glenlorne Township 25 of Lot 30 of Glenlorne) especially executable was dismissed. 3. Summary judgment was granted against the first respondent for payment of US$211,314.47 to the applicant. 4. First respondent to pay costs on an attorney-client scale.

1. For summary judgment to be granted, the plaintiff must establish an unassailable claim both factually and legally, with facts set out with sufficient clarity and completeness. 2. A valid suretyship agreement requires parties who intend to be bound, with the surety undertaking to guarantee the principal debtor's performance; merely offering property as security through a sworn affidavit without the creditor signing as a party and without an undertaking to guarantee performance does not create a valid suretyship agreement. 3. What is not denied in affidavits in opposed applications must be taken as admitted, dispensing with the need to prove those facts. 4. Under Rule 10 of the High Court Rules, where a defendant is entitled to defend part of a claim but not others, the court should grant leave to defend as to part and enter judgment as to the balance. 5. Unconditional admissions of indebtedness made in correspondence and not disputed in opposing papers establish liability even without reliance on "without prejudice" communications.

The court observed that the defences raised regarding contested amounts and Covid-19 induced supervening impossibility appeared to be "red herrings" meant to delay proceedings and were "dishonest to say the least." The court noted that it would be a "contradiction in terms" to deny admission of indebtedness when the second respondent indicated willingness to liquidate funds to pay the obligation and offered property as collateral. The court also commented that a company is a separate legal persona and no liability attaches to its directors or owners except in instances recognized at law, making the submission that the second respondent should be liable merely because he is "in control" of the first respondent untenable.

This case is significant in Zimbabwean civil procedure for clarifying the requirements for summary judgment applications, particularly in cases involving multiple defendants with varying degrees of liability. It reinforces the principle that summary judgment is an extraordinary remedy requiring an unassailable claim both factually and legally. The case also provides important guidance on the essential elements of valid suretyship agreements, emphasizing that merely offering property as security through a sworn affidavit does not constitute a binding contract of suretyship. The judgment demonstrates the court's power under Rule 10 to grant partial summary judgment where some defendants have bona fide defences while others do not, promoting judicial efficiency while protecting defendants' rights to defend genuine disputes.