The law on summary judgement is settled. This Court has clearly set out the requirements that have to be justified for summary judgment to be granted.In Tavenhave Machingauta Legal Practitioners v The Messenger of Court SC53-14 this Court elucidated the requirements when it made the following pronouncement…,.:“Summary judgement ...
The law on summary judgement is settled. This Court has clearly set out the requirements that have to be justified for summary judgment to be granted.
In Tavenhave & Machingauta Legal Practitioners v The Messenger of Court SC53-14 this Court elucidated the requirements when it made the following pronouncement…,.:
“Summary judgement is a drastic remedy which will only be granted where it is clear that the defendant has no bona fide defence and has entered appearance to defend solely for purposes of delay. Because of the drastic nature of the remedy, a court will not grant it if there is any possibility that the defence raised on papers might succeed. Thus, it has been held that a mere possibility of success will suffice to avoid an order for summary judgment and that 'all that a defendant has to establish in order to succeed in having an application for summary judgment dismissed is that; 'there is a mere possibility of his success' 'he has a plausible case' 'there is a triable issue' or 'there is a reasonable possibility that an injustice may be done if summary judgment is granted.'”
See also Kingstons Limited v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…, and Bastin v Madzima SC37-20 in which this Court made the following remarks…,.:
“There can be no doubt that the appellant did not point to any bona fide defence to the respondent's claim or to any triable issue as would dissuade the court a quo to grant summary judgement.
While summary judgement is an extraordinary remedy, given that it deprives a litigant, desirous of defending an action, the opportunity to do so without regard to the audi alteram partem rule, it has always been granted by the courts to an applicant possessing an unassailable case. It is trite that such an applicant should not be delayed by resort to a trial whose outcome is a forgone conclusion.
It is also trite, that, in order to defeat an application for summary judgment, a respondent must set out a bona fide defence with sufficient clarity and completeness to enable the court to decide whether the opposing affidavit discloses facts which, if proved at the trial, would entitle the respondent to succeed.”…,.
It is apparent from the cited cases, that, in an application for summary judgment, the applicant must show that the respondent does not have a bona fide defence and that the defence is ill founded.
In other words, for the applicant in a summary judgement to succeed, his claim must be un-assailable.
