HUGHES v LOTRIET 1985 (2) ZLR 179 (H)

Flynote

Civil procedure — summary judgment — High Court Rules Order 10 Rules 64, 65 and 67 — applicant for summary judgment can lead evidence in support of the application in his founding affidavit — thereafter he cannot in any way add to or extend the scope of the evidence provided — summary judgment is only available when the plaintiff has a clear case and the defendant no possible defence thereto.

Headnote

In dealing with an application for summary judgment the whole of O 10 of the High Court of Zimbabwe Rules, 1971, must be looked at in context. In particular R 67 as read with R 64 and 65 can only be interpreted as allowing an applicant to adduce evidence by way of his founding affidavit. The South African Rules of Court are worded differently and accordingly South African decisions on this aspect are of no application in interpreting the Zimbabwean Rules. Rule 67 provides that the affidavit which is delivered with the notice under R 65 can contain evidence to which the applicant is confined at the hearing. In an application under R 64 the applicant is allowed to include evidence in the accompanying affidavit to which R 67 restricts him at the hearing. Summary judgment will only be granted where the plaintiff has made out a cause of action to which the defendant has no possible defence.