Stationery Box (Private) Limited v Natcon (Private) Limited and Farai Ndemera

The plaintiff issued summons against the defendants claiming US$4,568.85 for stationery sold and delivered during the period 22 April to 20 May 2009. The plaintiff alleged that it supplied stationery valued at $9,932.85 to the first defendant, and on 20 May 2009, the second defendant bound himself as co-principal debtor and surety for the debt which then stood at $8,700.00. The first defendant made several payments, leaving the balance claimed. The defendants filed an entry of appearance to defend, prompting the plaintiff to apply for summary judgment. The second defendant, in opposing the application, denied that the first defendant purchased the stationery from the plaintiff. Instead, he averred that the first defendant received an order from its client (Kingstones) for stationery and sourced it from the plaintiff. When Kingstones failed to pay, the first defendant advised the plaintiff, who refused to accept the chalk back. The defendants alleged an agreement was reached whereby the first defendant would sell the chalk and remit periodic payments to the plaintiff, which the first defendant had been doing prior to summons being issued.

• Whether the plaintiff should be granted leave to file a supplementary affidavit in summary judgment proceedings
• Whether the defendants raised a bona fide and plausible defence to the plaintiff's claim sufficient to resist summary judgment
• Whether the facts alleged by the defendants, if proved at trial, would constitute a defence to the claim for the purchase price of goods sold and delivered
• Whether the alleged arrangement for the return of goods or subsequent payment arrangements constituted a valid defence to the original claim

1. Judgment was entered for the plaintiff in the sum of $4,568.85. 2. The defendants were ordered to bear the costs of suit.

In summary judgment applications, a defendant must allege facts which, if established at trial, would constitute a valid legal defence to the claim. The defence must be set out with sufficient clarity and completeness to enable the court to assess whether it is bona fide and plausible. Contradictory averments that simultaneously deny the existence of a contract while admitting receipt of goods and partial payment do not constitute a bona fide defence. It is not the function of the court to construct possible defences on behalf of a defendant who fails to clearly plead them. A supplementary affidavit may be permitted under Rule 67(c) where the defendant raises matters in opposition that the plaintiff could not reasonably have been expected to deal with in the founding affidavit, particularly where prior correspondence did not suggest such matters would be raised as a defence.

The court observed that the onus on a defendant resisting summary judgment has been described as among the lightest that the rules of procedure cast on litigants, as the defendant need not prove his defence but merely set up facts which, if proved at trial, would entitle him to succeed. However, this does not mean defendants can raise contradictory or implausible defences. The court noted that while the defendants did not clearly plead agency or consignment as defences, even if such defences were intended, they were not articulated with the necessary clarity. The court also commented on the proper terminology for affidavits in summary judgment proceedings, noting that the proper term should be "supplementary affidavit" rather than "answering affidavit" as derived from the wording of Rule 67.

This case is significant in Zimbabwean civil procedure for clarifying the proper approach to summary judgment applications, particularly: (1) the circumstances in which a plaintiff may be permitted to file a supplementary affidavit in summary judgment proceedings under Rule 67 of the High Court Rules 1971; (2) the requirement that defendants must clearly and plausibly set out their defence with sufficient particularity to enable the court to assess whether it is bona fide; (3) the principle that courts will not construct defences on behalf of defendants who fail to clearly plead them; (4) the application of fundamental contract law principles regarding the obligations arising from agreements of sale; and (5) that while the onus on defendants resisting summary judgment is among the lightest in procedural rules, the defence must still be plausible, coherent, and not inherently unconvincing or contradictory.