FIRSTEL CELLULAR (PRIVATE) LIMITED
NETONE CELLULAR (PRIVATE) LIMITED
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GARWE JA & PATEL JA
HARARE, FEBRUARY 14, 2014 & JANUARY 27, 2015
T Magwaliba and J Muchada, for the appellant
D Ochieng, for the respondent
PATEL JA: This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$ 8,330,470.52 together with interest at 2.5% per annum above the prime overdraft bank rate and costs of suit.
The claim against the appellant arose from a service provider agreement concluded between the parties on 10 March 2006 (the agreement). The agreement required the appellant to pay the sums due thereunder within thirty days of receiving the respondent’s invoices. It is common cause that the appellant owed the respondent the outstanding amount claimed as at 30 September 2010. The respondent issued summons on 16 November 2010 and, following the appellant’s appearance to defend, applied for summary judgment on 14 February 2011.
The court a quo held that the respondent’s claim was unimpeachable and that the appellant had no plausible defences to the claim. In particular, the court found that there was no supervening impossibility due to the currency regime changeover between January and March 2009, entailing any objective impossibility of recovering debts from the appellant’s customers. Additionally, there was no condition precedent in the agreement that those customers should first pay the appellant before it became obliged to pay the respondent. Lastly, there was no principal and agent relationship between the parties to preclude the recovery of payments from the appellant upon presentation of the respondent’s invoices.
The grounds of appeal herein arise from the defences raised in the High Court, viz. supervening impossibility of performance, recovery from customers as a condition precedent for payment, and the existence of a principal and agent relationship between the parties. In essence, the question to be determined is whether the learned judge was correct in holding that the respondent’s claim was unassailable and that the appellant had no bona fide defences to that claim.
In addition, the appellant’s heads of argument raise a further ground of appeal not pleaded in its notice of appeal. It is argued that the order granted by the court a quo is vague as it does not specify the applicable rate of interest and the dates when the amounts due accrued interest.
A further procedural point taken at the hearing of the appeal relates to the respondent’s founding affidavit in support of its application for summary judgment. Counsel for the appellant submits that this affidavit is flawed in that the status of the commissioner of oaths before whom it was deposed is not clearly identified.
VAGUENESS OF COURT ORDER
The court a quo granted summary judgment as prayed for in terms of the draft order. The latter is regrettably terse and simply orders that summary judgment be entered in terms of the summons. In the summons, the respondent’s claim is for payment of the sum of US$8,330,470.52 with:
”interest thereon at a rate of 2.5% per annum above the prime overdraft rate of the Standard Chartered Bank of Zimbabwe, from the date each payment was due to the date of payment.”
Adv. Magwaliba for the appellant contends that this part of the court order is vague and unclear as regards the rates of interest applicable and their respective dates of application. As I have already indicated, this is not a ground of appeal that was raised in the notice of appeal. Nevertheless, it is a point of law that can be raised at any stage of the proceedings, provided that the other party is not thereby prejudiced. Adv. Ochieng for the respondent accepts that it would not be improper or prejudicial to the respondent for the point to be addressed and determined at this stage.
In my view, there is nothing vague or unclear in the court order as read with the summons. The applicable rates of interest are undoubtedly available from the bank cited and the dates from which those rates apply will be apparent from the relevant tax invoices presented by the respondent to the appellant. In any event, this is an issue that should most appropriately be agreed between the parties themselves or, failing such agreement, be referred to the court a quo for determination and quantification.