The plaintiff seeks provisional sentence against the
defendant in the sum of $6,606=48, which itself falls squarely within the
jurisdiction of the Magistrates Court, but has been brought to this court for
unknown reasons.
Of course, the plaintiff asserts that he is entitled to
bring the claim to this court because the Magistrates Court's jurisdiction is
limited to a claim of not more than $5,000= - a clear case of persistence in
ignorance even after an objection on jurisdiction was made.
The plaintiff's claim is based on a handwritten document
signed by the defendant on 14 June 2014 before three witnesses who have not been
called upon to submit affidavits on the circumstances under which the document
was signed - even after the defendant alleged that undue influence was brought
to bear upon her to sign the document.
Be that as it may, it is still necessary to relate to that
document from the very outset as the issue for determination is, first and
foremost, whether it is indeed a liquid document as would found a claim for
provisional sentence in terms of Rule 20 of the High Court of Zimbabwe Rules,
1971. It reads:
“14/6/2014
AGREEMENT DONE BETWEEN JOHN MASEKO AND MS NOMUSA NDLOVU
I, NOMUSA NDLOVU, ID 84-024712H-39 hereby that (sic) I
would settle $600= for rental outstanding to Mr. John Maseko. I will also
settle the City of Bulawayo arrears of $350=. I will also settle the Zesa bill
in liaising (sic) with Mr. B. Masuku until the installation of the pre-paid
meter. I promise to pay the rental on payment terms of $500= on the 21 June
2014 onto Mr. J Maseko (sic) accountant.
Balance on $100= on the 25 June 2014.
I promise that any default of payment will authorize Mr. J
Maseko to auction and sell the goods on the inventory.”
As I have said, the document is signed by witnesses but is
a photocopy and not an original.
In addition to the said document, the plaintiff has attached
a Zesa bill addressed to I. Maseko of P26 Mzilikazi, Bulawayo, for account
number 5028074, dated 18 August 2014. It shows an outstanding balance of $5,137=63.
He has also attached a City of Bulawayo bill dated 27
August 2014, addressed to Mr. J Maseko at P26 Mzilikazi, Bulawayo, on account
number 700381179. It shows an outstanding balance of $468=85.
It is those three documents which form the basis of the
suit for provisional sentence.
The defendant filed an opposing affidavit denying liability
or the existence of a lease agreement between herself and the plaintiff.
Instead, she states that it is her estranged husband, a relative of the
plaintiff, who has a lease agreement with the plaintiff and that she was
claiming occupation of House Number P26 Mzilikazi, Bulawayo through her
husband. The latter was obliged to pay a monthly rental of $200= to the
plaintiff. The husband deserted the family at some stage only to return in the
company of the plaintiff to threaten her for being in arrears. They forcibly confiscated
her property which they locked away; ill, and scared of being thrown out of the
house or being arrested, the defendant says she was forced to sign the document
I have referred to above, which was signed under duress.
The defendant maintains that the document is not a liquid
one as it does not state the amount of $5,137=63 being claimed for electricity
or the amount of $468=85 for the municipality bill. She says she paid
everything that was owed to the plaintiff before vacating the rented premises
in September 2014.
The plaintiff's answering affidavit is not helpful at all
in resolving the issue.
Let me begin by making reference to the words of the
learned authors HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior
Courts in South Africa, third edition, Juta & Co Ltd…, 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.”
In terms of Rule 20 of the High Court Rules, 1971, where
the plaintiff is the holder of a valid acknowledgment of debt, commonly known
as a liquid document, he may issue summons for provisional sentence based on
that document.
That is what the plaintiff has sought to do but the
validity of that document has been put in issue.
Unfortunately, the term 'liquid document' has not been
defined in the Rules providing for provisional sentence. However, from decided
cases, certain broad principles have evolved in respect of the grant or
otherwise of provisional sentence based on a liquid document. They are that:
1. Any clear, unequivocal and unambiguous written promise
to pay a debt constitutes a liquid document (Sibanda v Mushapaidze 2010 (1) ZLR
216 (H)…,.).
2. A liquid document which, on the face of it, speaks
unequivocally, must have the story of the transaction behind it as an
investigation into the story may show that the defendant is not liable in terms
of the liquid document. (Allied Holdings Ltd v Myerson 1948 (2) SA 961 (W)…,.).
3. If the court has to go behind the liquid document, the
onus is on the defendant to show that if evidence is heard the probabilities
are that he would succeed. (Allied Holdings Ltd v Myerson 1948 (2) SA 961 (W)…,.).
4. Where the legality of a document is called into
question, as when the document may be tainted with illegality, the court has to
decide whether to let the loss lie where it falls or to relax the rule against
illegal agreements in order to do justice between the parties, such an inquiry
cannot be made at provisional sentence stage but can only be determined at the
trial of the matter (Matsika v Jumvea Zim (Pvt) Ltd and Another 2003 (1) ZLR 71
(H); Sibanda v Mushapaidze 2010 (1) ZLR 216 (H)…,.).
5. Where the defendant denies that the signature on a
document is his or that of his agent, the onus is on the plaintiff to prove
that the signature is his (Donkin v Chiadzwa 1987 (1) ZLR 102 (H).
6. It would be a travesty of justice if the court were to
grant provisional sentence on the strength of vague, confusing, and unclear
documents whose authenticity has been questioned (Briggs v Billiati and Another
HH749-15).
Relating to the present matter, the documents relied upon
by the plaintiff are equivocal, unclear, and ambiguous and certainly do not
represent a straight forward promise to pay by the defendant - apart from the
fact that she alleges duress before signing the said document. In the document
signed by the defendant, she promises to pay the sums of $600= and $350= which
add up to $950= and not the $6,606=48 the plaintiff is claiming.
Therefore, the document cannot possibly be said to be
liquid to the extent that the plaintiff's claim is concerned.
In order to arrive at the amount he is claiming, the
plaintiff has had to rely on extrinsic evidence in the form of Zesa and municipality
bills which are not cited in the acknowledgement of debt and are completely
unrelated to the promise to pay. In the first place, regarding the municipality
bill, the defendant did not acknowledge the sum of $468=85 contained in the
bill. Regarding the Zesa bill, she did not undertake to pay the sum of $5,137=63
contained in the bill.
In the second instance, the extra evidence of the bills
produced by the plaintiff to justify the claim is unrelated both in terms of
time and in terms of the names of the account holder. The Zesa bill is in the
name of I. Maseko whose identify is unknown and was issued on 18 August 2014
when the acknowledgment of debt was signed with John Maseko on 14 June 2014.
The City Council bill is indeed in the name of J. Maseko but was issued on 27
August 2014. Clearly, therefore, those documents are not contemporaneous, and,
as such, even if one were to stretch the imagination to elasticity limit, it
cannot be said that on 14 June 2014 the defendant was acknowledging
indebtedness in respect of those two bills.
It is trite that the need for extrinsic evidence to
substantiate a document invalidates that document's liquidity.
The moment it becomes apparent that in order to prove
liability in the amount claimed the plaintiff would have to lead more evidence
either to explain the contents of the document or to justify the amount
claimed, the document ceases to be liquid. The plaintiff must therefore desist
from seeking provisional sentence based on such a document. It is the height of
irresponsibility to just forge ahead in the pursuit of the remedy of
provisional sentence in the hope that the court will piece together evidence
contained in various documents not signed by the defendant in acknowledgment of
indebtedness and completely unrelated. Doing that would amount to making a case
for the plaintiff which is not contained in a liquid document envisioned by Rule
20.
The plaintiff's woes do not end there.
The defendant has alleged that there was no contractual
relationship between the parties as would visit her with liability for rent,
electricity, and water bills. Such a relationship was between the plaintiff and
her husband. Added to that is the allegation of duress. That constitutes a
defence which has to be interrogated. In the words of PRICE J in Allied
Holdings Ltd v Myerson 1948 (2) SA 961 (W)…,;
“It is recognized, of course, that a liquid document which,
on the face of it, speaks unequivocally, must have the story of the transaction
behind it and that an investigation into that story may show that the
(defendant) is not liable in terms of the liquid document; but once we go
behind the liquid document, the onus is on the defendant to show that if
evidence were heard, the probabilities are that he would succeed.”
I am satisfied that if one were to go behind the document
and investigate the story presented by the defendant regarding liability and
duress, especially in light of the fact that her goods were confiscated, the
defendant may succeed. All that, however, cannot be decided at provisional
sentence stage. The determination of those issues would have to be reserved for
trial.
That, therefore, resolves the matter. I would not
countenance granting provisional sentence in the circumstances.
Counsel for the defendant asked for the dismissal of the
plaintiff's claim by reason that the plaintiff adopted the wrong procedure. He
submitted that a dismissal of the provisional sentence summons is implied in Rule
34 of the High Court Rules.
I do not agree.
Rule 34 provides:
“Where provisional sentence has been refused and the case
has been ordered to stand over for trial, the summons shall stand as a summons
in an ordinary action and the defendant shall enter appearance within five days
of the court's judgment, and thereafter the rules for procedure in an ordinary
action shall apply unless the court gives other directions.”
That Rule does not provide for a dismissal of the action
where provisional sentence is refused and a dismissal cannot possibly be
implied. Such a construction accords with the fact that provisional sentence
proceedings are interlocutory in nature. The summons is like any other summons.
As such, the proper approach would be to stand the matter over for trial where
provisional sentence is refused.
I however agree with counsel for the defendant that the
claim for provisional sentence was so hopelessly without merit and unwarranted
that there must be consequences to the plaintiff for adopting the wrong
procedure, a process which has put the defendant unnecessarily out of pocket.
In that regard, the plaintiff should bear the defendant's wasted costs.
In the result, it is ordered that;
1. Provisional sentence is hereby refused.
2. The matter is hereby stood over for trial with the
summons for provisional sentence to stand as a summons in an ordinary action.
3. The defendant shall enter appearance to defend the
action within five (5) days of this order.
4. The plaintiff shall bear the defendant's
wasted costs.
