MTSHIYA J: In this application the applicant seeks the
following relief:-
“IT IS ORDERED THAT:-
1.
It is ordered that Respondent pays the sum of US$154 922-07 plus
interest on this sum at the rate of 50% per annum from 1st January
2012 to the date of payment in full;
2. Respondent pays the costs incurred in Case No. 137/12 as ordered by
the High Court and collection commission thereupon calculated in terms of the
Law Society of Zimbabwe by-laws;
3. Respondent shall pay costs of this application on a scale f legal
practitioner and client.”
It is common cause that:
(a) On 1 August 2011 a company known as
Sunjet Development Holdings (Pvt) Ltd (Sunjet) agreed that it owed applicant a
sum of US$145 138-00 being loan proceeds.
(b) On 11 August 2011 the 1st
respondent, as a surety and co-principal debtor guaranteed payment of the
amount referred to in (a) above. The surety was executed by the second
respondent and
(c) On 25 October 2012, under case number
HC 137/12, the applicant obtained the following judgment against Sunjet:-
“IT IS ORDERED THAT:
1. Defendant pays the sum of US$154 922-07 plus interest thereupon at
the rate of 50% per annum from 1st January 2012 to date of payment
in full.
2. Defendant pays the costs
of this application and of the main suit on a scale of legal practitioner
and client and collection commission calculated in terms of the Law Society of
Zimbabwe By-Laws.”
It is on the basis of the above order that, the applicant, in its supporting
affidavit of 10 January 2013 states as follows:-
“8.
Consequently First and Second Respondents are
now obliged to make the payment of the amount disclosed in Annexure D. In spite
of promises by Sunjet Development Holdings (Pvt) Ltd to make payment, it has
not in fact done so.
9.
In the result Applicant prays for judgement in the following
terms:
That First and Second Respondent, jointly and severally, the one paying the
other to be absolved, pay the said sum of US$154 922-07 plus interest on this
sum at the rate of 50% per annum form 1st January 2012 to the date
of payment in full together with costs and collection commission in terms of
the high Court judgement Annexure 'D' plus further costs arising from this
application on a scale of legal practitioner and client scale and in terms of
the draft attached hereto.”
The application is opposed mainly on the basis that there is no founding
affidavit, there is a misjoinder of second respondent and because, as the
respondents state:-
'4.5 AD PARAGRAPHS 8-9
The failure by the principal
debtor to make payments in terms of the order obtained by the Applicant does
not itself oblige the 1st Respondent to be liable to pay the amount
reflected on the Order, more particularly in that;
(a) When
Annexure “D” was obtained, the Respondents in this matter were never a party to
the said. Had they been a party, maybe the court would have reached a different
outcome. By requiring the Respondents to fulfill and satisfy an order they were
not a party to, is a clear disregard of the natural principle of the audi
alteram partem rule.
(b) The Applicant is
simply trying to join parties to an order which they never participated in
litigation and its outcome thereof.”
I agree with the above position taken by the respondents.
My view is that on the basis of (a) and (b) above, this application cannot
succeed.
Initially, in its Heads of Argument, the applicant had submitted that what was
before the court was an application for summary judgement. However, at the
hearing of the application that position was abandoned and its counsel then
argued as follows:-
“This application is meant to enforce liabilities of a
co-principal debtor and surety. It is open to the applicant to proceed this
way. The applicant can use the judgement as a cause of action.”
I do not agree with the above submission. The court has been thrown into a
situation where it has to guess what type of application is before it. The
applicant has correctly accepted that it cannot be an application for summary
judgement as provided for in our High Court Rules 1971.
Having admitted that the process before the court is not defined anywhere in
our rules, the applicant remains shy to say it should have joined the
respondents or issued summons against them separately. The respondents are
entitled to be heard in the same manner as the entity they guaranteed was
heard. Accordingly one cannot dismiss their defences without allowing them to
be heard in terms of our rules of court. That means they can only be heard when
the applicant approaches the court properly i.e. with a defined court process.
I agree that the court order may bring into play a cause of action but that is
only in relation to the parties to that order. The form of “execution” against
the respondents that the applicant seeks to invent is not provided for in our
civil law. I have not been able to find any authority which states that once a
judgement is obtained against the principal debtor, the grantors become
automatically liable and be executed against.
The foregoing demonstrates that the nature of the application before the court
has not been defined and as such, my view is that there is no proper
application before the court. If the respondents were responding to a proper
court process, I would, indeed, have been obliged to consider all the
preliminary points they raised and probably also then proceed to determine the
matter on the merits. I cannot do that in the absence of a proper process
before the court.
I therefore find no reason why I should not dismiss
this undefined application as prayed for by the respondents.
The application is dismissed with costs.
Messrs Gill, Godlonton and Gerrans, applicant's legal practitioners
Messrs
Khanda and Company, respondents' legal practitioners
