TAVENHAVE AND MACHINGAUTA LEGAL PRACTITIONERS
THE MESSENGER OF COURT
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA & PATEL JA
HARARE OCTOBER 14, 2013
T Mpofu, for the appellant
I Mureriwa, for the respondent
ZIYAMBI JA: After hearing argument in this matter we allowed the appeal and issued the order appearing at the end of this judgment. The following are our reasons for so doing.
On 23 January 2012, the respondent (“the Messenger of Court) issued summons in the High Court against the appellant, as first Defendant, and Manase & Manase as second Defendant, claiming payment of USD 9 643.20 due and owing to it as well as interest calculated from 21 September 2011 to date of final payment and costs.
The claim was set out in the declaration as follows:
“4. Sometime in September 2009 Mr Tavenhave who is currently practising with the 1st defendant as a partner but who then was practising under the employ of the 2nd Defendant as a professional assistant, instructed the plaintiff to execute on some warrants for ejectment and execution against movable property in respect of two matters namely;
4.1. Mervyn Susman Trust v Ethanasia Court Residents, and
4.2. Ramson (Pvt) Ltd v Edgars Stores (Pvt) Ltd
5. The plaintiff raised invoices in respect of the services rendered in the two matters as follows;
5.1. Mervyn Susman Trust v Ethanasia Court Residents- invoiced USD15 532.20 against deposits of USD3 300.00 leaving an outstanding balance of USD12 232.20.
5.2. Ramson (Pvt) Ltd v Edgars Stores (Pvt) Ltd – invoiced USD6 093.00 against deposits of USD3 682.00 leaving an outstanding balance of USD2 411.00
5.3. The total outstanding therefore in respect of the two matters was USD14 643.20
6. Upon demand, the 1st defendant settled in part only and paid USD5 000.00 thereby leaving an effective outstanding balance of USD9 643.20 which amount is due and owing despite demand.
7. As instructions in respect of the above matters were issued from the 2nd defendant, the 2nd defendant is liable for settlement of the said outstanding amount.
8. Additionally and in the alternative, the plaintiff was advised that the practitioner who handled the matters left the practice of the 2nd defendant and now practices as a partner with the 1st defendant, and that he took the matters in respect of which the claim arises with him, the 1st defendant is also liable jointly and severally with the 2nd defendant in respect of the said outstanding amount.
WHEREFORE, the plaintiff claims against the defendants jointly and severally the one paying the other to be absolved;-
Payment of USD 9 643.20 due and owing the plaintiff. Interest on the aforesaid amount at the prescribed rate calculated from the 21st of September 2011 to the date of full and final payment both dates inclusive. Costs of suit.”
Both defendants entered appearance to defend. On 15 February 2012 the claim against the second defendant was withdrawn leaving the appellant as the only defendant. Thereafter, on 28 February 2012, the respondent applied for summary judgment.