SUPERBAKE BAKERIES (PVT) LTD v RUMTOWERS SECURITY (PVT) LTD 2014 (2) ZLR 191 (S)

Flynote

Practice and procedure — summary judgment — when may be granted — claim for damages for breach of contract such a claim never unarguable — ? summary judgment should not be granted for damages

Headnote

The respondent obtained summary judgment against the appellant after the latter cancelled a contract under which the respondent provided security services for the appellant. The sum claimed fell into two parts: half was for the charges for the three months immediately before the cancellation, and ? the balance was for damages in lieu of three months' notice of termination. The appellant appealed against the order for summary judgment.

Held, that summary judgment is an extraordinary remedy which is granted to a party so that a matter may be determined expeditiously where a defendant has entered appearance to defend for the purpose of delaying the proceedings. The special procedure was conceived so that a mala fide defendant might be summarily denied, except under onerous conditions, the benefit of the fundamental principle of the audi alteram partem rule. So extraordinary is the invasion of the basic principle of natural justice that it will not be lightly resorted to. It will only be granted in circumstances where it is established that the plaintiff's claim is clearly ? unarguable both in fact and in law. In respect of the first half of the claim, the appellant acknowledged its indebtedness, except for a portion which it had already paid, so summary judgment in the reduced sum would be granted. However, damages for breach of contract could not properly be awarded in an application for summary judgment, because, in terms of the contract, the precise amount of damages must be proved. In addition to what was stated in the agreement, it is part of our law that a plaintiff who seeks damages must take into account any necessary expenditure he would have incurred pursuant to the contract. It should be pointed out that damages by their nature do not easily lend themselves to determination in a summary judgment. Damages are never unarguable^@. Leave to defend in respect of that portion of the claim should have been granted.