In
this matter, the plaintiff issued summons for provisional sentence claiming the
sum of US$62,139=63, together with interest thereon at the prescribed rate
calculated from 15 September 2012 to date of payment in full, costs of suit on
the attorney and client scale and collection commission at 10% of that amount.
The
plaintiff's claim was based on an acknowledgement of debt executed by the
defendant on 31 August 2012 in favour of the plaintiff which is quoted in extenso hereunder;
“ACKNOWLEDGEMENT
OF DEBT
I,
Tawanda Ruzive, I.D. No. 29-013045 S 77 (the debtor) of 21A Whitestone Way,
Burnside, Bulawayo (which I hereby irrevocably choose as my domicilium citandi for all purposes in connection with this
acknowledgment of debt) do hereby acknowledge as follows:-
(1) I
am bound as the debtor to Zuva Petroleum One (Private) Limited (formerly BP
Zimbabwe (Private) Limited (the creditor) for US$62,139=63 (sixty two thousand
one hundred and thirty nine United States dollars and sixty three centre) (“the
principal debtor).
(2) I
undertake to pay the money as follows:-
2.1
US$5,000= on or before 15 September 2012.
2.2
The balance of US$57,139=63 in seven (7) monthly payments of $8,162=80 with the
first instalment due on or before 1 October 2012 and thereafter on or before
the 1st day of each succeeding month up to 1 May 2013.
2.3
The debtor shall have the right to pay instalments higher than the sum of US$8,162=80.
(3)
I undertake to pay a collection commission of 10% of the principal debt which
amounts to US$6,213=. I undertake to pay the commission by not later than
1 May 2013.
(4)
I renounce the benefit of the legal exceptions the non causa
debiti, the errore calculi, the revision of accounts,
the no value recorded, and the beneficium ordinis seu
excussionis et divisionis;
the meaning and effect of which I am familiar.
(5)
The principal debt shall become due and payable immediately in the event of my
insolvency or if I commit an act of insolvency.
(6)
I shall not be released from the debt until the full amount of the principal
debt and collection commission is paid in full.
(7)
Any certificate issued under the signature of the creditor or his duly
authorized agent that purports to certify the amount due hereunder shall be
accepted as prima facie proof of such indebtedness
and shall have sufficient probative value to enable the creditor to obtain
summary judgment or provisional sentence against me in any competent court for
the amount stated in such certificate, and I accept the onus of disproving the
amount so stated as not being the amount owing.
(8)
I shall not be entitled, for any reason whatsoever, to withhold or defer
payment stipulated in the acknowledgement of debt.
(9)
In the event that I default on the payment of any instalment in terms of clause
2 above, the creditor may take legal action against me without the necessity of
prior demand.
(10)
In the event that I default on the payment of any instalment by due date and
the creditor ends up instituting legal proceedings against me, then I undertake
to pay all legal expenses that the creditor may incur, including attorney and
client costs, collection commission and tracing fees. I acknowledge that it
shall not be necessary for ZUVA Petroleum One (Private) Limited to give me
notice before instituting legal proceedings.
Thus
done and signed at Harare on this 31st day of August 2012.
TAWANDA
RUZIVE I.D. No. 29-013045 S 77.”
The
defendant and two witnesses signed this acknowledgement of debt.
This
court was called upon to determine the following issues.
(1) Whether
or not the above acknowledgement of debt is a liquid document, and whether or
not the defendant is bound by the acknowledgement of debt which forms the
plaintiff's cause of action in this matter; and
(2)
Whether or not the defendant ought to pay the costs of this suit on an attorney
and client scale.
Order
4 Rule 21 of the High Court Rules provides thus:-
“A
summons claiming provisional sentence shall state the amount and any interest
due by virtue of the said liquid document or other such demand as by virtue of
the said liquid document is legally claimable, and shall call upon the
defendant to satisfy the plaintiff's claim, or in default to appear before the
court at the hour and on the day and at the place stated in the summons to show
why he has not done so, and to acknowledge or deny the signature to the said
liquid document or the validity of the claim.”
It
is common ground that having signed the above acknowledgement of debt, the
defendant did not pay any amount in terms of the said acknowledgement of
debt. It is also common cause that the defendant does not deny at all that
the signature appended to the document on 31 August 2012 was his. He has
not even sought to explain why he has failed to satisfy the debt. The
document clearly states the amount and interest thereon.
It
admits of no doubt that the above document is a liquid document.
The
defendant sought to raise issues which, in my view, were totally irrelevant
with no bearing on the acknowledgement of debt.
He
sought to rely on two documents dated 10 August 2011 and 31 July 2012,
respectively, which clearly pre-dated the above acknowledgement of debt dated
31 August 2012. When the defendant signed the acknowledgement of debt he
was quite aware of those two documents and their contents. If he had
wanted to include any information from them to be included in the
acknowledgement of debt he would have easily done so. The defendant again
does not proffer any explanation why he did not do so if he felt any
information therein was relevant.
Instead,
he simply proceeded to sign the acknowledgement of debt without demur.
The
defendant also attempted to rely on annexure “E” which was not helpful either
as it, in fact, showed an amount greater than that on the acknowledgement of
debt.
I
associate myself with the sentiments expressed in Caltex
(Africa) Ltd v Trade Fair Motors and Another
1963 (1) SA 36 (SR) that where the acknowledgement of debt is sufficiently
clear and certain and no evidence to the contrary has been given by the
defendant, provisional sentence summons will be granted….,.
In
addition, the defendant opposed the granting of provisional sentence when he
had no explanation for his failure to honour his obligation in terms of the
acknowledgement of debt. His opposition was a clear abuse of this
court. In my view, this is a proper case where an award of punitive costs
ought to be made.
In
the result, I would issue the following order.
It
is ordered that:-
(1) Provisional
sentence be and is hereby granted as claimed with an award of costs on an
attorney and client scale.
