On 16 February 2007, the appellant and respondent entered into an agreement whereby the respondent provided security services to the appellant's premises for a fee. The respondent provided three security guards during the day (12-hour shift) and two during the night. On 30 June 2009, the appellant summarily cancelled the agreement. The respondent issued summons claiming US$6,000: US$3,000 for services rendered during April, May and June 2009, and US$3,000 as damages for breach of contract in lieu of three months' notice. The appellant acknowledged indebtedness of ZAR 27,600 by letter dated 29 June 2009 and claimed to have paid ZAR 2,400. The parties proceeded on the basis that US$1 = ZAR 10. The High Court granted summary judgment for the full US$6,000. The appellant appealed, raising defenses that payment should be in Zimbabwe dollars, that it was incorrectly cited, and that the respondent's guards had stolen goods from its premises.
1. The appeal succeeds in part. 2. The order of the High Court is set aside and substituted with: (i) Summary judgment in the sum of US$2,760 granted in favour of the respondent; (ii) The appellant is granted leave to defend the claim for damages in the sum of US$3,000; (iii) The appellant shall pay the costs of the High Court application. 3. The appellant shall pay the costs of this appeal.
Damages for breach of contract cannot properly be awarded in summary judgment proceedings because such damages must be proved through evidence. Summary judgment is an extraordinary remedy conceived to summarily deny mala fide defendants the benefit of the audi alteram partem rule, and will only be granted where it is established that the plaintiff's claim is clearly unarguable both in fact and in law. Damages by their nature do not easily lend themselves to determination in summary judgment as they are never 'unarguable'. Where a party claims liquidated damages based on a contractual pre-estimation clause, that party must prove: (i) the basis upon which the damages constitute genuinely pre-estimated liquidated damages; (ii) the calculation showing compliance with the contractual percentage; and (iii) the applicable period under the contract. Rule 8C of the High Court Rules applies only to associations and not corporate bodies.
The Court commented that Rule 36(4) of the Supreme Court Rules, which deals with non-appearance of appellants, does not preclude the court from hearing and determining an appeal on the merits where the appellant has filed heads of argument, even if the appellant fails to appear at the hearing. The Court also observed that a plaintiff seeking damages must take into account any necessary expenditure that would have been incurred pursuant to the contract. Additionally, the Court noted that unsubstantiated allegations (such as the theft allegation in this case which lacked details of who allegedly stole, what was stolen, or the value) do not merit serious consideration and cannot constitute a valid defense.
This case establishes important principles regarding the limits of summary judgment proceedings in Zimbabwean civil procedure. It clarifies that damages for breach of contract cannot be awarded through summary judgment because such damages must be proved through evidence. The case reinforces that summary judgment, being an extraordinary remedy that invades the audi alteram partem rule, should only be granted where a plaintiff's claim is clearly unarguable both in fact and law. It also clarifies the application of Rule 8C of the High Court Rules, distinguishing between associations and corporate bodies. The judgment provides guidance on the evidentiary requirements for proving liquidated damages claims under contractual pre-estimation clauses.