The second is that the tenant must raise the dispute and initiate a written declaration of such dispute. Thereafter the parties agree on the expert.

The applicant is a Trust duly registered in terms of the laws of this country whereas the fifth respondent is a limited liability company registered in terms of the laws of this country. The first to fourth respondents are sole shareholders and directors in the fifth respondent, Saltana Enterprises (Pvt) Ltd.

The fifth respondent is currently under judicial management. Its judicial manager, Mr C Madondo, has, however, since filed a letter saying that he has no interest in this case and will abide by the decision of this Court and has sent a representative for an observation brief.

That being the case, the question of the fifth respondent's locus standi, that is to say, the right to stand and be heard in court, becomes a non-issue.

The first and second respondents are husband and wife. The same applies to the third and fourth respondents.

At the commencement of this hearing, the first and third respondents requested that their wives be excused from the hearing and that they be allowed to represent and speak on behalf of their respective wives to save costs.

There being no objection from counsel for the applicant, I granted the two respondents permission to represent and speak on behalf of their wives.

In any case, the two wives were already in default and would have had default judgments entered against them anyway. It is highly unlikely that they can successfully apply for rescission of judgment seeing that the defaults appear to be willful and deliberate. For that reason, I cannot perceive any prejudice which cannot be redressed by an appropriate order of costs if their husbands are allowed to speak on their behalf with the applicant's consent.

In this regard, I find the applicant's attitude commendable in that it is not trying to snatch at default judgement but to obtain judgment on the merits.

In granting this unusual request, I was alive to the peculiar relationship between husband and wife in that they normally have a common interest and household.

Generally speaking, at common law, the husband is the head of the family and has the marital power although the position has been somewhat altered by statute. In Christian parlance, they are said to become one flesh and blood at marriage.

That being the case, I could perceive no impediment or impropriety in a husband representing his wife in a case in which they are jointly being sued and there is no objection from the other party.

The respondents objected to the matter being placed before this Court arguing that the dispute ought to have been referred for arbitration in terms of clause 13 of the contract which provides as follows:

“In the event of a dispute or a claim arising as a result of a breach of this agreement or other cause arising from this agreement, then, the purchaser shall be entitled, after notifying the seller beforehand, to have the dispute or claim or other cause referred to arbitration.”

My reading of the above clause is that it does not compel the applicant to refer the matter for arbitration in the event of a dispute arising. It merely entitles, without directing, the applicant to refer the dispute for arbitration.

In other words, the clause merely confers a discretion on the applicant whether or not to refer the matter to arbitration without impeding its right to approach the Courts for redress.

For that reason, I hold that the applicant was within its rights in referring the dispute to court for resolution.

Section 8 of the Contractual Penalties Act [Chapter 8:04] provides:

“(1) No seller under an installment sale of land may, on account of any breach of contract by the purchaser -

(a) Enforce a penalty stipulation or a provision for the accelerated payment of the purchase price; or

(b) Terminate the contract; or

(c) Institute any proceedings for damages, unless he has given notice for damages, unless he has given notice in terms of subsection (2) and the period of the notice has expired without the breach being remedied, rectified or discontinued, as the case may be.

(2) Notice of the purposes of subsection (1) shall -

(a) Be given in writing to the purchaser; and

(b) Advise the purchaser of the breach concerned; and

(c) Call upon the purchaser to remedy, rectify or desist from continuing, as the case may be, the breach concerned within a reasonable period specified in the notice which period shall not be less than -

(i) The period fixed for the purpose in the instalment sale of the land concerned;

(ii) Thirty days;

whichever is the longer period.”

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,. 

(b)...,. 

(c)...,. 

(d) Whether part of the amount claimed by the plaintiff before the Frankfurt Regional Court had prescribed at the time that the claim was instituted....,.

Prescription of Claim

According to the defendant, part of the loans founding KFW's claim had prescribed under the law of Zimbabwe by the time that KFW instituted proceedings in the Frankfurt court.

In this regard, the defendant refers the Court to the loan repayment schedules set out in the two loan agreements (Nos. F2971 and F3040) and contends that all the amounts due for repayment on or before 31 September 2001 had prescribed at the relevant time. The defendant further contends that the judgment of the Frankfurt court itself, delivered on 25 July 2006, had prescribed within three (3) years and that the plaintiff's action in this Court, filed on 15 October 2009, was instituted out of time.

I must confess that I find it somewhat difficult to comprehend the defendant's contentions on prescription.

First and foremost, the defendant is unable to state, with any certainty, when the proceedings in the Frankfurt court were instituted, and, therefore, what the cut-off date should be for the purposes of prescription before that court.

Secondly, even if the cut-off date argued for by the defendant is accepted, I note that the repayments due on or before that date constitute only about 20% of all the repayments owing to KFW.

Thirdly, the schedules referred to deal only with capital repayments and there is no indication as to the quantum of interest payable on the loans and the due dates for payment of such interest.

Finally, the ruling of the Frankfurt court (at p.4 of the certified translation) refers to a letter of demand for all amounts owed by the defendant, exceeding Euro 50 million, while the amount actually claimed by KFW in the Frankfurt court is no more than Euro 6.6 million (together with interest).

On these facts, it seems to me virtually impossible to ascertain precisely what amounts were owed under the loan agreements and when such amounts became due and payable. Therefore, without further documentary and oral evidence being lead, any attempt, at this stage, to determine what has prescribed would be an exercise in utter futility.

In any event, quite apart from the aforementioned evidential difficulties, there is considerable merit in the plaintiff's submission that prescription is a substantive matter, and, as such, falls to be determined by the lex causae and not the lex fori: see Laurens N.O. v Von Hohne 1993 (2) SA 104 (W)…,.

Under the loan agreements in casu (Article 10.2 of Loan No. F2971 and Article 9.2 of Loan No. F3040) the loans are governed by the law of the Federal Republic of Germany.

It is that law that is the lex causae and it is that law that determines the question of prescription.

In this regard, the defendant has not adduced any evidence as to the German law of prescription.

It is clear that in terms of clauses 5 and 6 of the Deed of Settlement the applicants were obliged to pay rentals due and owing no later than 10 May 2010 failure of which the first respondent was entitled to evict in terms of the court order obtained on 19 February 2010 without any further ado.

Clauses 10 and 11 of the second Agreement provided for penalties and remedies in the event of breach as follows -

“10. Should the tributor commit any breach of the conditions of this agreement, the grantor may make immediate demand upon the tributor to rectify any such breach within seven days from the date of the demand and should the tributor fail so to rectify such breach of agreement then, and in such case, the grantor shall have the right to terminate this agreement by giving one month's notice in writing to that effect to the tributor subject to such determination not in  any way affecting any claim for damages sustained by the curator in respect of such breach.

Background

The respondents contend, further, that the lease did not continue beyond 31 August 2005 because there was no agreement between the parties on the rentals due thereafter.

In terms of Clause 3 of the lease, the initial rent payable for September 2004 in February 2005 was Z$7, 500= per month. For the remaining six months of the year the rent would be reviewed at the prevailing open market rate. In his opposing affidavit, the second respondent suggests, as a statutory tenant, the first respondent is obliged to pay Z$7,500,000=. This court takes judicial notice of the fact that due to the hyperinflation that gripped this country for the last six years, the Zimbabwe dollar was revalued on more than two occasions after this agreement was entered into by the parties. Each revaluation exercise would have drastically reduced the amount quoted on the lease to a ridiculous rental thus making a mockery of the agreement itself.

During the month of September 2008, the second applicant, representing the first applicant, entered into a memorandum of an Agreement of Sale with the first respondent for the sale of a dwelling house known as number 29 Landau Drive or 13 Copley Crescent, Khumalo, Bulawayo.

The purchase price was US$150,000= payable by the Purchaser directly to the Seller at Bulawayo free of bank exchange as follows:

1. US$10,000= in cash before the 24th of September 2008;

2. US$40,000= by way of transfer into the Seller's husband account before the 24th of September 2008;

3. The balance to be paid in a space of three months in installments of:-

(i) US$34,000= to be paid by 31st of October 2008;

(ii) US$33,000= to be paid by the 28th of November 2008;

(iii) US$33,000= to be paid by the 31st of December 2008.

Clause 13 of the Agreement stipulated that should the purchaser fail to make payment on due date of any amount as provided in clause 1 of the Agreement of Sale or commit any breach of the terms and conditions thereof, then, upon giving seven days written notice, the Seller shall, at her option, have the right to sue for the full balance of the purchase price outstanding, including interest at prevailing Barclays Bank UK overdraft – lending rates and collection charges of 10%, or, alternatively, to cancel the Agreement of Sale and resume possession of the said property and sue the purchaser for any damages she may have suffered as a result thereof and 15% of any payments made by the Purchaser to the Seller shall be retained by the Seller as errah or rouwkoop.

The Purchaser failed to meet his obligations as agreed by the parties.

The parties ended up agreeing that it would not be possible for the Agreement of Sale to be consummated. That was entirely due to the fault of the Purchaser. The buyer had paid US$80,649=28 towards the purchase price at that time. When the Seller sought to invoke the provisions of clause 13 of the Agreement of Sale above the applicants launched this application seeking the following order:-

“It is ordered that:-

1. It and is hereby declared that no penalty shall be chargeable upon the applicants by the 1st respondent consequent to clause 13 of the agreement of the parties signed on the 19th September 2008; and

2. Judgment be and is hereby granted against 1st respondent and in favour of the applicants in the sum of US$80,649=28 together with interest at the prescribed rate from the date of judgment as well as cost of suit.”

The first respondent vehemently opposed the application and counter claimed thus:

“It is hereby ordered that:-

1. It be and is hereby declared that the applicants and 1st respondent entered into an Agreement of Sale for Stand 6813 Bulawayo Township for the sum of US$150,000=;