IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO.1903/2001
In
the matter between:
EPHRAIM
MAGAGULA PLAINTIFF
VS
VJR
AGENCIES DEFENDANT
CORAM: ANNANDALE
J
FOR
PLAINTIFF: MR. DUNSEITH
FOR
DEFENDANT: ADV. FLYNN
(instructed
by Robinson Bertram)
JUDGMENT
16th
OCTOBER 2002
Plaintiff
in this application for summary judgment is a man who owns fixed
residential properties which he let through defendant as his agent.
One of his properties, which gives rise to the matter, is in Mbabane
and was let to one Victor de Oliveira as tenant at the monthly rate
of El 213.00. Contrary to what so frequently happens, de Oliveira was
a tenant who kept to his side of the bargain and paid rentals when
due. There is no dispute between the parties that this was the case.
The litigation arose when plaintiff found that the collected rental
monies which were received on his behalf did not find their way to
his pocket. He himself and instituted this action, wherein defendant
avers that "Yes, we did receive the rentals but we have fully
accounted for it - some of the monies have been paid into your
banking
2
account,
the rest by way of payments made directly to yourself." To
substantiate its defence, the Estate Agency's proprietor, Mr. Brian
Martin, file a computer generated "General Ledger" covering
the period in question.
Each
of these "General Ledger" printouts reflects the monthly
accounting statement or "Property Owners Control" of E.N.
Magagula, the plaintiff. Each monthly statement generally details a
receipt number and date in respect of payment received as rental in
the amount of El 213, the same amount that plaintiff alleges in his
particulars of claim. The general ledger printouts also generally
reflect payments made to either the plaintiff or Swazi Bank, the same
bank account referred to by plaintiff in his particulars.
In
his affidavit resisting summary judgment defendant's proprietor
states that all payments received from the tenant are properly
accounted for and tendered timeously to plaintiff, either by payment
directly into his banking account or directly to plaintiff himself.
It is these records of account, referred to as "General Ledger"
that are enclosed with his affidavit. He further states in his
affidavit that each and every cheque in respect of such payments will
be made available at the hearing and that if necessary, leave of
court will be sought to file those cheques. He had not yet been able
to locate the cheques in the time available at the stage he filed his
affidavit resisting the summary judgment application. Only one cheque
drawn in favour of Swazi Bank, endorsed "E.N. MAGAGULA",
was enclosed with his papers, which cheque is in respect of a period
falling outside the period of the claim.
The
defence raised to oppose summary judgment is thus that in respect of
the period over which payments were received in favour of the
plaintiff, all payments to plaintiff by defendant had been made,
either into his banking account as instructed or directly to himself
from time to time. If that was the totality of the defence, it was
open to be found bald, sketchy and vague. But it is not the case.
Defendant set out how each such payment was made, the date when it
was done and the amount paid.
All
the defendant did not do is to provide actual proof of payments in
the form of the physical cheques in favour of the plaintiff and
showing that same have been honoured by its own Bank. As reason for
this, as aforesaid,
3
was
the lack of time to locate the cheques. There is no allegation in
plaintiff's claim that such cheques were dishonoured.
On
these facts, I am hard pressed to find that defendant did not fully
disclose the nature and grounds of his defence and the material facts
on which it is based. Whether the cheques allegedly drawn in favour
of plaintiff were indeed drawn and either deposited into his banking
account or received by himself is a factual matter that cannot be
decided on the papers as they now stand.
On
the papers, it certainly appears that defendant fully disclosed his
defence, which if proven as it says it can, may well dispose of the
matter. It is however a factual dispute between the parties on the
issue of the actual payments, as alleged by defendant and denied by
plaintiff. Rule 32(4)(a) refers to an application for summary
judgment and reads:-
"Unless
at the hearing of an application under sub-rule (1) either the court
dismisses the application or the defendant satisfies the court with
respect to the claim, or the part of the claim to which the
application relates that there is an issue or question in dispute
which ought to by tried or that there ought for some other reason to
be a trial of that claim or part, the court may give such judgment
for the plaintiff against the defendant on that claim or part as may
be just having regard to the nature of the remedy or relief claimed"
(my underlining)
From
this emphasised part of the rule in relation to what has been
outlined above, I hold the view that indeed here is a factual dispute
which ought to be referred for trial. Accordingly, the application
for summary judgment is dismissed, with costs ordered to be costs in
the cause.
J.P.
ANNANDALE
Judge
