Dry Fly Trading (Private) Limited t/a JCB Link and Tefco Finance (Private) Limited v Leighton Innocent Mutandwa

### Preamble
1
HH 497 - 25
Case No HCH 4171/24
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DRY FLY TRADING (PRIVATE) LIMITED T/A JCB LINK

and

TEFCO FINANCE (PRIVATE) LIMITED

versus

LEIGHTON INNOCENT MUTANDWA

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 21 May 2025 & 4 September 2025

Opposed Matter - Summons for Provisional Sentence

Mr T.L. Mapuranga, for the plaintiffs

Mr M.S. Nyawoka, for the defendant

MUSITHU J:    The plaintiffs’ claim is for provisional sentence against the defendant in the sum of US$270,271.00, being the full outstanding balance of funds owed to the plaintiffs by the defendant. The plaintiff also claimed interest at the prescribed rate of 5% per annum, calculated from the date of issue of the summons to the date of payment in full. Also claimed were costs on the legal practitioner and client scale.

The plaintiffs’ claim arose from an acknowledgment of debt (the agreement) signed by the defendant at Harare on 25 July 2024, in which the defendant acknowledged owing the plaintiffs the sum of US$275, 271.00. Of that amount, the defendant is alleged to have only paid US$5, 000.00, leaving an outstanding balance of US$270, 271.00. According to the plaintiffs, the amount became due and payable to the plaintiffs because in terms of the agreement, a monthly instalment of US$6, 123.25 was due and payable to the plaintiffs on or before 31 July 2024. The defendant failed to satisfy that obligation in full after paying the sum of US$5, 000.00 only. The defendant therefore remained in breach and in terms of the agreement, any material breach rendered the full outstanding amount due and payable.

The plaintiffs’ claim was opposed. The defendant denied that he was indebted to the plaintiffs in the sum of US$270, 271.00. He denied that he had incurred the entirety of this amount, as he was not provided with sufficient evidence to justify the claim. The defendant also claimed that he had not been furnished with any cash accounts records, signed cash reconciliations nor audit evidence documents after his arrest as testimony of the claim.

The defendant averred that he was arrested and taken into custody from his work office on 30 November 2023, and appeared at the Rotten Row Magistrates Court. He claimed to have been placed on remand following his admission on bail. The defendant also averred that at all material times, he was legally represented. In an endeavour to resolve the matter amicably, discussions were held between the plaintiffs’ legal practitioners and his own. Despite these efforts, the defendant claimed that the plaintiffs’ legal practitioners chose to circumvent his own legal practitioners and engaged him directly. They did so with the intention of exerting pressure on him so that he could accept full responsibility for the alleged liability without due regard to his innocence.

The defendant claimed to have been subjected to dire threats, wherein the plaintiffs and their legal representatives insinuated that if he failed to comply with their demands and sign the said documents, then their wide ranging network of contacts within the judiciary and the political arena would be mobilised to ensure his prolonged imprisonment. The defendant claimed that the he requested an opportunity to engage with his own legal practitioners, but the menacing tone of the plaintiffs and their representatives left him with no choice but to acquiesce to their demands out of fear for his safety and liberty.

To confirm his averments, the defendant referred to WhatsApp exchanges between him and Mr Mbereko representing the plaintiffs. He expressed his reservations about admitting liability for the entire amount contending that such a concession was not justified in view of the circumstances of the case. He also requested the plaintiffs to release his haulage trucks and pick-up trucks that they had seized in exchange for his acceptance of liability.

The defendant also claimed that in view of the nature of the business activities and the lack of transparency surrounding the accounting of these transactions, he suspected a high risk of inaccuracy and impropriety. He made a request to be provided with relevant banking records and exchange rate schedules to allow for a meticulous reconciliation of the financial figures, so as to pinpoint any discrepancies in their accounting. The requested documents were never furnished.

The defendant further averred that in the absence of any documents that would substantiate the accuracy of the amount claimed, he was compelled to conclude that the amount was plucked from thin air, and devoid of any factual or legal basis. His failure to pay was simply a protest of the fact that he was promised in good faith to be furnished with these documents as well as his vehicles that were in their custody, but the undertakings were not honoured.

The defendant also claimed that the records pertaining to these transactions were exclusively under the custody of some individual called Mark Johnson, who had a close relationship with the directors of the plaintiffs’ company. During the investigations, he was warned by the plaintiffs’ directors not to mention the name of Mark Johnson.

The defendant further averred that in order to confirm his own protests regarding the debt, and the fact that he had been coerced to assume it, he offered his own payment schedule. It was further alleged that the plaintiffs refused to allow the defendant to summon a witness of his choice to bear testimony to the signing of the acknowledgment of debt. The witnesses present were individuals connected to the plaintiffs and their legal team, and this undermined the transparency of the whole process.

In conclusion, the defendant dismissed the agreement as fictitious, as the claim remained unsubstantiated. He also averred that the agreement was elicited from him under duress, as his reluctance to acquiesce was met with threats of extended imprisonment. The plaintiffs were also accused of acting in bad faith in that they circumvented the defendant’s legal practitioners and lured him to their offices where further threats were made to coerce him to sign the agreement.

In their answering affidavits, the plaintiffs denied that the defendant was ever coerced into signing the agreement. The defendant voluntarily admitted liability and offered to auction his vehicles in order to pay off the debt. It was the plaintiff who offered an out of court settlement in exchange for the criminal matter being withdrawn.

The plaintiffs also denied that the defendant ever requested any documentation from them since he never disputed the quantum of the debt.

The Submissions

Mr Mapuranga for the plaintiffs urged the court to note that the defendant did not dispute the signature on the agreement. The defendant’s claim of being pressured into signing the agreement should not be taken seriously, in the absence of a single communication in which the document was recanted. Counsel also made reference to screen shorts of communication between the defendant and the plaintiffs’ counsel which did not suggest any element of coercion.

Mr Mapuranga submitted that the alleged threats of imprisonment in the event that the defendant refused to sign the agreement should be dismissed because the plaintiffs had no capacity to send people to prison. The defendant’s conduct was not commensurate with that of a person under pressure at all.

For the defendant, Mr Nyawoka submitted that the basis of the agreement was the alleged embezzlement of funds as recorded in para 1 of the agreement. Embezzlement and fraud were one and the same thing. The basis of the agreement was therefore a criminal act for which the defendant had not been convicted by a criminal court. The matter was still pending before the criminal court and the defendant was yet to be proven guilty. The validity of the acknowledgement of debt was therefore impugned on the basis that its foundation was a criminal act.

Mr Nyawoka submitted that although the defendant was represented during the criminal proceedings, he was not legally represented at the time he signed the agreement.

The Analysis

The remedy of a provisional sentence is available to the holder of an acknowledgment of debt as an avenue through which a debt that is clearly incontestable can be recovered expeditiously.  Rule 14 of the High Court Rules, 2021, (the rules) states as follows:

“14. Provisional sentence

(1) Where the plaintiff is the holder of a valid acknowledgment of debt, commonly called a liquid document, the plaintiff may cause a summons to be issued claiming provisional sentence on the said document.”

In Mutemererwa v Munyeza & Ano, mangota J explained a liquid document in the context of an acknowledgment of debt as follows:

“Sibanda v Mashingaaidze, HH 56/2011 defines liquid document to mean any clear, unequivocal and unambiguous promise to pay a debt. The words ‘unequivocal’ and ‘unambigous’ presuppose that the document may, or may not, be equivocal and/or ambiguous. First Merchant Bank of Zimbabwe Ltd v Forbes Investments (Pvt) Ltd & Anor, 2000 (2) ZLR 221 (S) lays down three considerations which define the meaning and import of the phrase ‘a valid acknowledgement of debt’. These are that:

the acknowledgement must have been made by the debtor;

there must be express or tacit acknowledgement of the existence of liability –and

the acknowledgement must have been made in favour of the creditor or his agent.”

Provisional sentence therefore saves the holder of the acknowledgment debt the rigmarole of going through the painstaking process of a costly litigation, by making short work of a defendant’s case. The procedure though is not without its own obstacles. Debtors who voluntarily sign acknowledgments of debt are relentless in their attempts to wriggle out of their obligations. Courts have to contend with choreographed stories of threats of arrest and imprisonment, browbeating and ‘gun to my head’ protestations. This the scenario in the present matter.

The defendant portrays himself as a victim of circumstances who was forced into signing the agreement through outright deception and threats at the hands of the plaintiffs and their legal practitioners. However, his own evidence contradicts this averment. For instance, in para 12 of his opposing affidavit, the defendant asserts that:

“My failure to pay is simply a protest of the fact that I was promised in good faith to be furnished these documents and my vehicles in their custody but to date I have not.”

The defendant claims that he was arrested on 30 November 2023. From December 2023, there was an exchange of correspondence between the defendant’s legal practitioners and the plaintiffs’ legal practitioners. The communication was on finding the best ways to liquidate the defendant’s indebtedness to the plaintiffs. In a letter dated 30 January 2024, the defendant’s legal practitioners wrote to the plaintiffs’ legal practitioners expressing their preparedness to have the defendant’s vehicles sold to achieve this goal. The letter reads in part as follows:

“4.	Disposal of the motor vehicles as proffered by our client would be that it be done in a way that entails derivation of the best prices on the market rather than to deposit the vehicles with the auctioneers as minimal earnings will be realised thereat.

5.	Our client is happy that the process of disposal be driven by your client and him being advised of any disposal accordingly for record purposes.”

The communication between the defendant and the plaintiffs’ legal practitioners does not depict him as someone who was hoodwinked to bypass his legal practitioners and communicate directly with the plaintiffs’ legal practitioners. In his WhatsApp exchange with Mr Mbereko on 15 July 2024, the defendant acknowledged receiving the draft agreement and made his own counter proposal, which he forwarded to Mr Mbereko. His counter proposal still acknowledged the same amount of US$275, 271.00.   He proposed to increase the tenure from two and half years to five years; that the interest be reduced from 12% to 6%, and that the first instalment be due on 31 August 2024. No request of any documents or account statements was ever made.

In terms of his repayment schedule, the defendant was to pay a monthly instalment of $5, 321.76, plus interest from 31 August 2024 to 31 July 2029. The acknowledgment of debt that the defendant signed on 25 July 2024 required him to pay a monthly instalment $6, 123.25 for the same period, plus agreed interest. In one of his communications with the plaintiffs’ legal practitioners on 27 February 2024, the defendant wrote:

“………………My lawyer’s mandate was just to make sure that there is a smooth flow of this process and since we don’t have much knowledge of the law we have let him take the lead. He is also a busy man and I have also tried to consider that with the level I put pressure on him but we sat down as a family yesterday and agreed that we will see him today before court and discuss this matter and if he is unable to immediately deliver what he was supposed to have delivered in the past 2 months, we will have to engage another lawyer…”

The nature of the communication between the defendant and the plaintiffs’ legal practitioner does not suggest that he was under pressure at all. If anything, the plaintiffs” legal practitioner appeared to be very accommodating, which explains why the defendant was willing to express his own frustrations with the performance of his own legal practitioner. The defendant’s submission that he was exposed to threats of arrest, intimidation and forced to abandon his own legal practitioner, is at variance with his own evidence.

The defendant’s counsel sought to argue that the validity of the agreement could be impugned on the basis that its foundation was a criminal act, for which the defendant had not been found not guilty. That argument is clearly without merit for the simple reason that a pending criminal complaint does not impinge upon the institution of civil proceedings. By his own hand, the defendant acknowledged his own indebtedness and proposed flexible payment terms. The defendant does not even deny that he made the alleged payment of US$5, 000.00 as the first instalment. If he doubted the accuracy and the authenticity of the amounts claimed, then surely, he would have said so in his several exchanges with the plaintiffs’ legal practitioner.

In view of the foregoing, the court determines that the plaintiffs’ claim was incontestable and it ought to be granted.

Costs

Counsel for the applicant urged the court to make an award of costs on the punitive scale in the event that the plaintiffs’ claim found favour with the court. The claim of costs on the punitive scale was also motivated on the basis that the defendant persisted with what was clearly a frivolous and vexatious defence without just cause. I agree with the submission by the plaintiffs’ counsel that this is a fitting case for the award of costs on the punitive scale. The defendant’s defence was devoid of merit, and one cannot help but conclude that it was just a case of biding time to postpone the inevitable. An adverse order of costs on the punitive scale is inescapable.

Resultantly, it is ordered that:

Provisional sentence is hereby granted in favour of the plaintiffs.

The defendant shall pay the plaintiffs the sum of US$270, 271.00, or the ZIG currency equivalent at the prevailing interbank rate on the date of payment, being the outstanding balance of funds owed to the plaintiffs under an acknowledgement of debt.

The defendant shall pay interest on the amount stated in paragraph 2 above at the prescribed rate of 5% per annum, calculated from the date of issue of summons to the date of full payment.

The defendant shall pay the plaintiffs’ costs of suit on the attorney and client scale.

Musithu J: ………………………………………………

Takundwa Mbereko Attorneys, plaintiffs’ legal practitioners

Mahuni Gidiri Law Chambers, defendant’s legal practitioners