This is a claim for provisional sentence in the
sum of $199,430= together with interest at the prescribed rate of 5% per annum
from 3 December 2013 to date of payment and costs of suit.
The claim is based on four (4) documents which are
extremely confusing and seriously lack clarity. The first is a copy of a
document with the heading “Money Powel By Lawrence Billiati.” It contains a
list of six (6) figures adding up to $81,779= as money paid and records a 'balance
owing' of $199,430=. It concludes by saying:
“I, Alan Briggs, have received the abovementioned amount in
cash from Laurence Billiati for the loan repayment given to Mine Sack.”
It is signed, allegedly, by Alan Briggs and Lawrence
Billiati, on 10 October 2013 - which signing was not witnessed. That document
does not state when the loan was allegedly advanced, when the amounts allegedly
paid were so paid and why the first defendant would assume personal liability
if the loan was advanced to the second defendant.
The second document bears the heading “Investment made by
Flaksent to Mine Sack Investments.” It goes on to say:
“I, Alan Briggs, sold a new blue Vigo to Mine Sack
Investments, represented by Lawrence Billiati, for the sum of $50,000= USD and
to be paid over a period of six calendar months. Blue Vigo was given in late
July 2011.
Vehicle cost $50,000= USD.
Payments made to date $10,610=
USD.
Balance Owing $39,390= USD.
Payments have been made in USD and monies have been given
directly to me.”
It is signed, allegedly, on behalf of Flaksent Investments
and Mine Sack Investments, on 3 December 2012 - and the signing was not
witnessed by anyone.
If that document relates to an 'Investment' made by
Flaksent to Mine Sack Investments one wonders what it has to do with the sale
of a motor vehicle. More importantly, if the investment or sale was done by
Flaksent to Mine Sack Investments, on what basis, in law, is the plaintiff
suing for it and the first defendant being sued on it for a debt which would be
owed by a company?
The third document has no heading and is as meaningless at
it is confusing. It simply reads:
“I, Lawrence Billiati, from Mine Sack Mining, will pay $12,000=
USD every month to Alan Briggs for loan repayment starting from end of October
2013.”
It is signed, allegedly, by the plaintiff and the first
defendant, on 10 October 2013.
The final document reads:
“INVESTMENT AGREEMENTS BETWEEN ALL PARTIES TO MINE SACK
INVESTMENTS FOR THE YEAR OF 2012
I, Alan Briggs, of Flaksent Investments, state that I
acknowledge receiving funds from third parties for the investments into a
mining venture with Mine Sack Investments in Kadoma and declare that all
information I have stated and given is true and all due monies and interest will
be paid in full by December of 2013.
FLACKSENT INVESTMENTS (SIGNED)
06/05/2013
I, LAWRENCE Billiati, of Mine Sack Investments, state that
I acknowledge receiving funds from Flaksent Investments for the development of
my mine and that I declare that all information given is true and Mine Sack
Investments declares all monies and interest due will be paid in full by Dec
2013.
MINESACK INVESTMENTS Signed…,.
THIRD PARTY
Signed…,.”
The third parties that invested the money are not named.
The amount they advanced is not specified. The document does not state that
whatever amount it is that was invested would have to be paid to the plaintiff.
It does not state that the first defendant would be personally liable for the
repayment of money invested in a company.
Clearly, that document does not meet the requirements of a
liquid document which can found a claim for provisional sentence.
Looking at the totality of all the documents upon which the
claim for $199,430= is based there is nowhere, whatsoever, that the first and
the second defendants acknowledge indebtedness to the plaintiff in that amount.
Quite strangely, on the first document, it is the plaintiff who acknowledges
receiving monies and not the defendants acknowledging indebtedness. On the
second document, again, it is the plaintiff who acknowledges selling a vehicle
although it is headed as an investment. On the third document, the first
defendant allegedly acknowledges that he will pay a sum of $12,000= for an
unknown amount, while the fourth document contains no figure at all apart from
the fact that whatever amount it represents, it is not owed to the plaintiff
but unknown third parties.
Significantly, even if one were to assume, generously, in
favour of the plaintiff, that the two defendants acknowledged indebtedness of
the stated figures, an assumption which cannot be lawfully made in the
circumstances, the figures stated do not tally.
The defendant has denied any indebtedness to the plaintiff
in the amount claimed or at all. They deny that the first defendant's signature
is appended on the documents relied upon which they claim are fake. They have
challenged the plaintiff to produce the originals which he has not done.
In terms of Rule 20 of the High Court of Zimbabwe Rules,
1971:
“Where the plaintiff is the holder of a valid
acknowledgement of debt, commonly called a liquid document, the plaintiff may
cause a summons to be issued claiming provisional sentence on the said
document.”
Provisional sentence allows the plaintiff to receive
payment before the defendant has defended the suit at trial and may therefore
be said to be an extraordinary remedy. A court granting provisional sentence
must therefore be satisfied of the validity of the acknowledgment of debt to
the extent that the defendant did, in fact, append his signature on it to
unequivocally acknowledge owing a specified sum of money. It would be a
travesty of justice were the court to grant provisional sentence on the
strength of vague, confusing, and unclear documents whose authenticity has been
questioned.
Where the defendant denied that the signature on a document
is his or that of his agent, the onus is on the plaintiff to establish that indeed
it is his: Donkin v Chiadzwa 1987 (1) ZLR 102 (H)…,. See also HERBSTEIN and VAN
WINSEN, Civil Practice of the Superior Courts in South Africa, 3rd
ed…,.
In the words of MAKARAU JP…, in Sibanda v Mushapaidze 2010
(1) ZLR 216 (H)…,;
“The term liquid document is not defined in the Rules. This
court has, however, held that any clear, unequivocal and unambiguous written
promise to pay a debt constitutes a liquid document. Thus, any letter, to the
extent that it is clear, unequivocal, and unambiguous and contains an acknowledgment
of debt, can constitute a liquid document for the purposes of the Rules on provisional
sentence.”
I have already expressed the difficulties posed by the
documents relied upon by the plaintiff in this matter which clearly disqualify
them as clear, unequivocal and unambiguous written promises to pay a debt as
evinced by the Rules and therefore they cannot found a claim for provisional
sentence.
The position of the plaintiff is made worse by the fact
that the defendants have disowned the signatures attributed to them on those
documents. The plaintiff, who bears the onus, has not discharged it to prove
that indeed the defendants signed the documents. The determination of that
issue cannot be made at provisional sentence stage but would have to be
reserved for trial. Whichever way, the plaintiff cannot succeed at this stage.
As stated by PRICE J in Allied Holdings Ltd v Myerson 1948 (2) SA 961 (W)…, (quoted with
approval in Sibanda v Mushapaidze 2010 (1) ZLR 216 (H)):
“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.”
For now, the matter is resolved.
I would have refused provisional sentence and stood the
matter down for trial in terms of Rule 34 but then the plaintiff did not appear
to prosecute the matter. The notice of set down was served upon the plaintiff's
legal practitioners on 17 August 2015 but they chose not to appear.
The summons is therefore ripe for dismissal.
Accordingly, the provisional sentence summons is
hereby dismissed with costs.
