This is an action for civil
imprisonment instituted by the plaintiff against the defendant.
The salient facts of the case are
the following. Under HC982/12, this court ordered the defendant to pay the
plaintiff the sum of US$81,488= together with interest thereon at the
prescribed rate. The defendant was also ordered to pay costs on an
attorney-client scale. Thereafter, the plaintiff sought to satisfy the
judgment by attachment of the defendant's property - without success. The
Deputy Sheriff was unable to satisfy the exigencies of the plaintiff writ as
she was unable to locate any movable assets belonging to the
defendant. The Deputy Sheriff rendered a nulla bona return on 13 September 2012. The plaintiff,
as a result, instituted these proceedings seeking civil imprisonment of the
defendant.
The defendant has opposed the action
and has, instead, prayed that the warrant of committal be dismissed on
the basis that he is unable to pay the debt in terms of section 16 of the High
Court Act [Chapter 7:06]. In the alternative, the defendant prays that
this court suspends the warrant of committal on condition that the defendant
pays the plaintiff US$1,000= per month.
The defendant responded to summons
for civil imprisonment by attending the inquiry in the company of his legal
practitioner. He adduced evidence on his financial position. The
court enquired into the means of the defendant in terms of Order 41 Rule 370 of
the High Court of Zimbabwe Rules 1971.
It is trite law that, in terms of
Rule 370A, this court may issue an order for the committal of the defendant
where it is satisfied that the defendant has the means and/or the capacity to
pay the debt in issue but willfully neglects to do so. In terms of Rule
370C, the court may suspend the order for committal on conditions as the court
may think fit. The onus stands upon the debtor to establish that he does
not have the means or ability to pay the debt. Civil Practice of Supreme Courts in South Africa – HERBSTEIN and
VAN WINSEN…, and Mansour v Sorour Bros 1912 EDL 208.
In casu, the defendant initially offered to pay the sum of US$500=
per month. This offer was rejected by the plaintiff on the basis that it
would take too long for the defendant to finalise payment. The defendant
later increased his offer to US$1,000= per month. The defendant evinced on
the indebtedness to other people and institutions. He showed that a company,
Impala Enterprises (Pvt) Ltd, where he is Director, is currently under judicial
management and nothing was coming from it by way of income. The defendant
also testified that he was in the process of wooing investors in order to
enhance his financial position. Having regard to the evidence placed
before me, I conclude that the defendant is, to some extent, able to pay his
debt, so section 16 of the High Court Act [Chapter 7:06] is not applicable. In
my view he can afford US$2,000= per month. Accordingly, it is ordered that:
1. Civil imprisonment is hereby
granted in favour of the plaintiff against the defendant for the defendant to
be lodged at Bulawayo Prison for a period of ninety (90) days unless the
defendant sooner satisfies the judgment granted against him by this court under
HC982/12.
2. The order in paragraph (1) is
suspended on condition the defendant pays US$2,000= per month with effect from
the end of the month of January 2013.
3. The defendant shall pay costs of this suit on
the ordinary scale.
