R T Chibwe t/a Ross Motorways v Fawcett Security Operations (Private) Limited

### Preamble
1
HH 235/2013
HC 9651/12
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R T CHIBWE

t/a ROSS MOTORWAYS

versus

FAWCETT SECURITY OPERATIONS (PRIVATE)

LIMITED

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 24 July 2013 and 07 August 2013

Provisional Sentence

T Mpofu, for the plaintiff

B Chidziva, for the defendant

MATHONSI J:   The plaintiff seeks provisional sentence in the sum of US$36 457-11 together with interest at the rate of 5% per annum from 19 October 2011 to date of payment, a sum contained in various quotations attached to the provisional sentence summons. He also relies on the judgment of this court, being HH 79-06, per BHUNU J, ordering the defendant to pay the plaintiff the sum of $4 744 515 138-00 (four billion seven hundred and forty four million five hundred and fifteen thousand one hundred and thirty eight Zimbabwe dollars), plus interest at the prescribed rate and costs of suit.

The defendant opposes the grant of provisional sentence on the ground that the judgment relied upon sounds in Zimbabwe dollars, there is no judgment directing the defendant to pay the amount claimed and as such the claim is not based on a liquid document, the amount claimed not having been awarded by a competent court the defendant has also taken the strange view that the plaintiff ought to have issued a writ of execution to enforce the judgment even as the Zimbabwe dollar is no longer a medium of exchange.

The summons has been issued in terms of Order 4 r 20 of the High Court of Zimbabwe Rules, 1971 which provides:

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

Provisional sentence, by its very nature affords speedy remedy to a party, who is equipped with a document acknowledging the debt, which is executed by the debtor, to race to judgment and the recovery of the money owed without the unnecessary delay and the expense of a trial. The learned authors, Herbstein and van Winsen, The Civil Practice of the Superior Courts in South Africa, 3rded, Juta& Co Ltd make the point at p 541 that:

“The essence of the procedure then and now is that it provides a creditor who is armed with sufficient documentary proof (a liquid document)with a speedy remedy for the recovery of the money due to him without having to resort to the more expensive, cumbersome and dilatory machinery of  an illiquid action. The procedural method of provisional sentence is no magic wand to be used to disarm prospective defendants or dispel all opposition thereto, but is a well-recognised, long standing and often used mode of obtaining speedy relief where the plaintiff is armed with a liquid document. The purpose of provisional sentence proceedings is to enable the plaintiff to receive prompt payment without having to wait for the final determination of the dispute between the parties.”

The issue to be determined here is whether the judgment of BHUNU J, which is in Zimbabwe dollars and the accompanying quotations adding up to the sum of US$36 457-11 which are relied upon by the plaintiff, constitute liquid documents as to entitle the plaintiff to the relief of provisional sentence. I associate myself fully with the remarks of MAKARAU JP (as she then was) in Sibanda v Mushapaidze 2010 (1) ZLR 216 (H) 218 E – F that:

“The term ‘liquid document’ is not defined in the rules. This court has, however, held that any clear, unequivocal and unambiguous written promise to pay a debt constitutes a liquid document. Thus, any letter, to the extent that it is clear, unequivocal and unambiguous and contains an acknowledgment of debt can constitute a liquid document for the purposes of the Rules on provisional sentence.”

See also CSD Enterprises (Pvt) Ltd v  S & T Import & Export (Pvt) Ltd &Ors 1980 ZLR 238 (G);Western Bank v Pretorious 1976 (2) SA 481 (T).

In casu the plaintiff is relying as I have said on a judgment in Zimbabwe dollars. He has not attempted to secure the official exchange rate in this country as at 26 July 2006 when the judgment was delivered to try and convert it into United States dollars which are the recognised medium of exchange at the moment and are being claimed by the plaintiff in the summons. Instead; the plaintiff has assembled quotations as to how much it would cost to replace the motor spares that he lost as a result of the defendant’s breach of contract.

Mr Mpofu for the plaintiff submitted that the plaintiff does not claim for an amount representing the value of the goods stolen; but instead the value of the judgment. In my view this should be the correct approach but in making that submission Mr Mpofu sharply contradicts the plaintiff’s evidence as set out in para 3.5 of his answering affidavit where he says:

“All I have done as stated above is to set out the amount for which the replacement of the items stolen amount to and this will ensure the enforcement of the Honourable Justice BHUNU’s judgment the effect of which is that the defendant was ordered to pay for the stolen items since the Honourable Judge ruled that it was liable for the loss.”

In making the point that a judgment is liquid and so is a claim based on it, Mr Mpofu relied on authorities settling the point that a foreign judgment constitutes a cause of action and is regarded as being liquid: Commissioner of Taxes Federation of Rhodesia v Mcfarland 1965 (1) SA 470 (W); Rogers v Baumann 1903 T.H. 236.

It is also now settled that a debt incurred in Zimbabwe dollars can now be paid in the functional currency of the day: Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR 326; Fabiola Kwindima v Louis Mvundura HH 25-09.

The difficulty however arises out of the fact that even if the judgment of BHUNU J were to be regarded as a foreign judgment as it sounds in a currency not recognised in this jurisdiction, the quotations that have been used to arrive at the sum claimed do not stand for the value of the judgment. The suppliers would require that amount to supply the spares. To my mind the accurate value of the judgment is represented in the official exchange rate at the time the judgment was delivered or at least a conversion using incontrovertible methods. To me that would bring us closer to the value of the judgment and not the idiosyncrasies of individual suppliers of motor spares, which have not been tested and which Mr Chidziva says are mere estimates.

I am of the firm view that the documents relied upon by the plaintiff do not meet all the requirements of liquid documents to the extent that they are not clear, unequivocal and unambiguous. There is a pressing need to interrogate them further to the extent that there is need for extrinsic evidence, provisional sentence cannot be granted. It matters not that the defendant has not fully challenged the quotations. The plaintiff has not made a good case for the relief that he seeks. In terms of r 34 I will stand the case over for trial.

Accordingly it is ordered; that

Provisional sentence is hereby refused and the matter is stood over for trial.

The summons shall stand as a summons commencing action.

The defendant shall enter appearance to defend within five (5) days of the date of this judgment.

The costs shall be costs in the cause.

Chingore& Associates, plaintiff’s legal practitioners

Kantor & Immerman, defendant’s legal practitioners