ECOBANK ZIMBABWE LIMITED Versus DAINSMEAL INVESTMENTS (PRIVATE) LIMITED and TENDAI CHIDYAUSIKU and TIRIVANGANI CHIDYAUSIKU and CROWHILL FARM (PRIVATE) LIMITED

1 HH 170-20 HC 5303/19 ECOBANK ZIMBABWE LIMITED versus DAINSMEAL INVESTMENTS (PRIVATE) LIMITED and TENDAI CHIDYAUSIKU and TIRIVANGANI CHIDYAUSIKU and CROWHILL FARM (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE CHIKOWERO J HARARE, 17 February 2020 and 4 March 2020 Opposed application K. Kanyemba, for the applicant K. Kachambwa, for the respondents CHIKOWERO J: This is an application for summary judgment. On 21 June 2019 applicant issued summons against respondents for repayment of the sum of ZWL$298 801-80 plus interest, collection commission and costs on the higher scale. Respondents entered appearance to defend and requested for further particulars. This prompted the applicant to institute this application. The principal claim arose from a loan in the sum of ZWL$300 000 which the applicant advanced to the first respondent in terms of a written loan agreement. The second and third respondents bound themselves as sureties and co-principal debtors; having appended their signatures to Unlimited Personal Guarantees. The fourth respondent signed an Irrevocable Unlimited Cross Company Guarantee and bound itself as surety and co-principal debtor. The first respondent did not repay the loan in terms of the loan agreement. It made part- payments. 2 HH 170-20 HC 5303/19 Receipt of the summons was the result of this state of affairs. But the matter itself turns on whether the court application for summary judgment is valid. In Savanna Tobacco Company (Private) Limited v (1) Al Shams Global Limited (2) Interfin Banking Corporation Limited SC 25/18, at p 6 of the cyclostyled judgment, quoted with approval are the following words of MAKARAU JP (as she then was) in CABS v Ndahwi HH 18/10: “Summary judgment proceedings demand different considerations. This is so because summary judgment is extraordinary in that it takes away from the defendant some of the safeguards that are guaranteed by a full trial. It is a drastic remedy that is based on the supposition that the plaintiff’s claim is beyond impeachment, on any material basis and that the plaintiff is merely being held back from getting judgment by the rigors of a full trial which are then curtailed to his or her advantage. For the plaintiff to gain such an unusual advantage over the defendant, he or she must meet certain very stringent requirements as set out by the rules. It has thus been held time and again that plaintiffs wishing to use the speedy procedure of summary judgment must bring themselves squarely within the provisions of the Rules.” In Scorpton Trading (Pvt) Ltd v Khumalo 1998 (2) ZLR 313 (S) GUBBAY CJ (as he then was) said at 315A: “The learned judge expressed the view that the procedural objection taken in limine was purely technical…..” His Lordship continued, at 315 B-E, in these words: “I entertain no doubt that the learned judge erred in dismissing the procedural objection to the application. Such cases as Hugo Franco (Pty) Ltd v Gordon 1956 R & N 448 (SR) at 451 G-H, Art Printing Works Ltd v Citizen (Pvt) Ltd 1957 R&N 62 (SR) at 65D, Maclaurin v Horne 1965 RLR 639 (G) at 640 F, Shingadia v Shingadia 1966 RLR 285 (G) at 288 I-289 A, and Bank of Credit and Commerce Zimbabwe Ltd v Jani Investments (Pvt) Ltd 1983 (2) ZLR 317 (H) at 320 F, lay down clearly that it is for the plaintiff seeking summary judgment to bring herself squarely within the ambit of r 64. More recently in C Stenslunde and Co (Pvt) Ltd v Banwell Engineers Ltd 1988 (2) ZLR 327 (H), MTAMBANENGWE J dismissed with costs an application for summary judgment where the amount claimed in the summons differed from that verified in the plaintiff’s supporting affidavit (see at 328G). One simply cannot ignore the requirements of r 64.” Rule 64 of the High Court Rules, 1971 reads as follows: “ORDER 10 SUMMARY JUDGMENT 64. Application for summary judgment. (1) Where the defendant has entered appearance to a summons, the plaintiff may, at any time before a pre-trial conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs. (2) A court application in terms of subr (1) shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein verifying the cause of 3 HH 170-20 HC 5303/19 action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action. 3. ……. 4.……..” It is the law that the deponent to the affidavit supporting the application for summary judgment, if he or she is not the plaintiff, must be a person with personal knowledge of the facts deposed to: Bubye Minerals (Pvt) Ltd and Anor v Rani International Ltd 2007 (1) ZLR 22 (S). A reading of the founding affidavit must lead to the reasonable inference that the deponent is knowledgeable of the facts deposed to. In this vein, the Supreme Court, per GUBBAY CJ (as he then was), said in Chiadzwa v Paulkner 1991 (2) ZLR 33 (SC) at 37 C: “What a deponent must do in order to effectively counter any such doubt, is to set out fact s which will justify the court in coming to the conclusion that the averments in the summons are within his knowledge – some facts which show an opportunity on his part to have acquired such personal knowledge … A useful test is to ask whether the deponent would be a competent viva voce witness to the facts were he to be called …”. In Time Bank of Zimbabwe Ltd v Moyo 2002 (1) ZLR 121 (H) the Chief Internal Auditor of the plaintiff, who had deposed to the founding affidavit in support of the court application for summary judgment, filed an answering affidavit setting out the basis of his assertion that he had personal knowledge of the facts set out in the summons. The court granted the application for leave to file the answering affidavit. In the present matter, in the founding affidavit, in dealing with the critical issue of personal knowledge, which is a legal requirement in terms of r 64 (2), the deponent simply states: “I the undersigned CHARLES NYARUVANGA do hereby make oath and state that: I am the applicant’s Country Risk Manager, and as such I am authorised to depose to this affidavit on behalf of the applicant. The facts I depose to herein are within my personal knowledge and are true and correct.” In my view, the mere fact that the deponent is applicant’s Country Risk Manager, without more, cannot lead to a reasonable inference that he is possessed of personal knowledge of the facts set out in the summons. 4 HH 170-20 HC 5303/19 The Time Bank Zimbabwe Ltd (supra) case cited by Mr Kanyemba is clearly distinguishable. In that matter the necessary factual foundation was set out in the answering affidavit. Here Charles Nyaruvanga said nothing to substantiate his ipse dixit that he had personal knowledge of the matters deposed to in the founding affidavit to the court application for summary judgment. An attempt was made by Mr Kanyemba to plug this gap, at the hearing, under cover of his oral argument. Regrettably, counsel was giving evidence from the bar. Advocate Kachambwa properly objected to this desperate course of action. I upheld the objection. In application proceedings, the founding affidavit constitutes both the pleading and evidence. Oral argument cannot be employed to cure a fatal defect in a summary judgment application. The founding affidavit was fatally defective. It did not set out the factual basis for the allegation by the deponent that he had personal knowledge of the facts set out in the summons. It follows that the application itself was not valid. In the result, the application is dismissed with costs. Chitewe Law Practice, applicant’s legal practitioners Dube, Manikai and Hwacha, respondent’s legal practitioners .

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