Unified Africa Technologies (Pvt) Ltd v Twenty Third Century Systems (Pvt) Ltd

The applicant and respondent are both registered companies in the business of Information and Communication Technologies (ICT) Services. From around 2011, the applicant supplied the respondent with computer equipment and the respondent made payments on presentation of invoices. However, the respondent failed to pay for two invoices: invoice no. 2130 dated 30 September 2011 and invoice no. 2318 dated 3 February 2012. The respondent signed an acknowledgement of debt on 29 January 2014 in the sum of US$146,616.31 for these two invoices, agreeing to clear the debt in 6 equal monthly instalments of US$24,136.05 starting from 14 February 2014. The respondent only paid a total of US$26,700.00 between 5 March 2014 and 1 October 2014, failing to pay the balance of US$119,916.31. The applicant issued summons on 4 February 2015 claiming the balance, and the respondent entered an appearance to defend. The applicant then applied for summary judgment.

• Whether the applicant's founding affidavit was properly attested to by a Commissioner of Oaths who used a stamp marked 'Certified True and Correct Copy of the Original'
• Whether the respondent's opposing affidavit was valid in the absence of proof of authority to represent the company
• Whether the respondent had a bona fide defence to the claim based on failure to place it in mora
• Whether the claim was tainted with illegality due to alleged lack of proof of lawful importation of products
• Whether a party can claim both legal costs and collection commission
• Whether the respondent had any triable defence warranting refusal of summary judgment

Summary judgment granted in favor of the applicant for the balance of US$119,916.31. Costs awarded on a legal practitioner and client scale. Collection commission was not awarded.

1. An affidavit commissioned locally in Zimbabwe is not rendered fatally defective by the use of a stamp marked 'Certified True and Correct Copy of the Original' where the affidavit shows that the deponent took oath and both the deponent and Commissioner of Oaths affixed original signatures. Authentication by stamping is only required for affidavits commissioned outside Zimbabwe under section 9 of the Justice of Peace and Commissioner of Oaths Act [Chapter 7:09]. 2. Where a deponent states he has authority to represent a company and no evidence to the contrary is adduced, the omission of a company resolution is not fatal, particularly where the same person has previously acted on behalf of the company in related matters. 3. A party bound by an acknowledgement of debt that waives the requirement for notice cannot rely on failure to be placed in mora as a defence. 4. Collection commission is not payable after judgment where the principal sum has not been collected by the legal practitioner before judgment and the plaintiff is seeking the court's assistance through judgment to recover the debt, regardless of any prior agreement to pay collection commission.

The court noted that on the issue of whether collection charges are payable after judgment, the authorities are divided, with Cape Provincial Division cases holding they are not claimable on judgment debts, while Natal Provincial Division cases hold they are claimable depending on the wording of the clause and Law Society By-Laws. The court expressed preference for the Cape authorities. The court also observed that summary judgment cannot be denied solely because the issue of costs and collection commission is in dispute, as this is a purely legal issue that can be decided on the papers. The court noted that stating one is a Commissioner of Oaths and affixing one's signature alone would have sufficed without the need for authentication by stamping.

This case is significant for clarifying several procedural and substantive issues in Zimbabwean law: (1) the effect of improper stamps by Commissioners of Oaths on affidavits commissioned locally; (2) the requirements for proof of authority to depose to affidavits on behalf of companies; (3) the test for bona fide defence in summary judgment applications; and (4) the important principle that collection commission is not payable after judgment where the debt has not been collected before judgment and the court's assistance is required to recover the debt. The case reinforces the principle that parties cannot resile from acknowledgements of debt without genuine defences.