The
bare bones of the dispute in this appeal are these:
The
appellant and the first respondent entered into a lease agreement for
premises situate at 26 East Road, Belgravia, Harare on 16 May 2003.
On 14 March 2008, the first respondent, following its cancellation of
the lease agreement, obtained an order in the Magistrates' Court
under case number MC1701/07. The contentious order was couched in
these words:
“Claim
granted, defendant to vacate the premises of the plaintiff by 30 June
2008. Defendant ordered to pay holding over damages as claimed by the
plaintiff from February 2007.”
The
first respondent did not enforce the order from 14 March 2008 until
February 2009 when it proceeded to have the appellant evicted from
the premises and also caused the appellant's property to be
attached by the second respondent to satisfy the judgment debt.
There
is a dispute as to why the first respondent sat on its laurels for
almost a year without executing the judgment.
The
appellant avers that subsequent to the 14 March 2008 order he
concluded a verbal lease agreement with the first respondent in terms
of which the appellant would have continued use of the premises
provided he paid rentals in foreign currency. While the first
respondent disputed the existence of such a verbal lease agreement
the odds are against it for it could not proffer any plausible
explanation for the delay in enforcing the judgment.
Be
that as it may, following the eviction of the appellant and
attachment of his property alluded to above, the appellant
successfully filed an urgent chamber application in this court under
case number HC1116/09 to stay execution of the writ.
The
terms of the final order sought were that the first respondent stay
execution of the warrant pending finalisation of this appeal in terms
of which a determination would be made with regard to whether it was
proper that the warrant should be sounding in foreign currency when
the judgment sounded in Zimbabwe dollars and whether the fact that
the warrant was signed by a representative of the second respondent
and not a legal practitioner was fatal to the execution thereof.
The
crisp issues for our determination are three, viz:
1.
Whether the judgment of the magistrate in case number MC1701/07 met
the requirements for the issue of a warrant;
2.
Whether the first respondent was entitled to revalorise its claim on
execution; and
3.
Whether the warrant was fatally/totally defective.
Hereunder
we proceed to deal with those issues seriatim.
1.
REQUIREMENTS FOR THE ISSUE OF A WARRANT
It
is trite that a writ of execution will be set aside on application if
the judgment upon which it is premised was not definite and certain.
The test to apply was propounded by CLAYDEN J…, in McNutt
v Mostert
1949 (3) SA 253 (T) and cited with approval in Hartley
v Hartley
1999 (1) ZLR 431 (SC)…,. It is that:
“…,.
The judgment upon which execution is issued must be a judgment from
which there can be gathered what money or thing the judgment debtor
must deliver.”
In
the instant case, the magistrate's judgment was worded in the
following language:
“Claim
granted, defendant to vacate the premises of the plaintiff by 30 June
2008. Defendant ordered to pay holding over damages as claimed
by the plaintiff from February 2007.”…,.
While
the magistrate's order was inelegantly drafted, it is, however,
clear that the claim that was granted is the claim as stated in the
summons. That claim includes the following:
(a)
An order cancelling the lease;
(b)
That defendant pays holding over damages at the rate of Z$1,137,000=
per month with effect from 21 February 2007 for the duration that the
defendant remained in occupation of the premises;
(c)
Specific performance that the defendant replaces the damaged kitchen
door, alternatively, pays as damages replacement value of the damaged
door at
the time judgment is entered
i.e. 14 March 2008; and
(d)
Specific performance that the defendant re-decorates interior of
premises, alternatively, he pays for cost of paint, materials and
labour costs
at the time judgment is entered
i.e. 14 March, 2008….,.
While
the judgment is definite and certain in that it can be gathered what
money or thing the judgment debtor must deliver, the first respondent
only executed it some eleven months later and wrongly included
amounts sounding in United States dollars for a maximum of only one
quotation obtained long after judgment had been entered contrary to
the time prayed for in the claim.
In
terms of the judgment that was granted, the value of the damaged door
and the costs for materials and labour was to be pegged at the time
judgment was entered, namely, 14 March 2008 and not at the time of
execution - eleven months later!
At
the time judgment was entered the currency in use was the Zimbabwe
dollar and not US dollar.
From
a legal stand point, the first respondent was not entitled to effect
currency conversion on the warrant of execution without an
application for the same having been made and granted.
2.
WHETHER FIRST
RESPONDENT WAS ENTITLED TO REVALORISE ITS CLAIM ON EXECUTION
The
claim was in Zimbabwe dollars and the court a
quo's
judgement
was in Zimbabwe dollars. However, the first respondent revalorized
the claim in US dollars on execution. This, as alluded to in number
(1) above, was not only incompetent for arbitrariness but offended
against the time honoured principle of currency nominalism.
That
principle holds that a debt sounding in money has to be paid in terms
of its nominal value irrespective of any fluctuations in the
purchasing power of the currency. The
appellant relied for this principle on Komichi
v Tanner and Anor
HH104-05.
Counsel
for the first respondent argued that the principle of currency
nominalism is only invoked where there is a specific amount of money.
She submitted that case law to that effect abounds but failed to cite
even a single such case.
It
is trite that the principle of currency nominalism is part of our
law.
In
Jeofrey
Mukorera v Ocean Breeze Engine and Cooling Systems
HH13-08, MAKARAU JP…, stated the principle as follows:-
“The
concept of currency nominalism has been held to be applicable in all
aspects of South African Law…,. I hold the view that the
distortions caused by inflation in the economy should not lead to the
wholesale distortion of legal principles that have withstood the test
of time in a bid to find legal solutions to a problem that is not
legal in nature and origin and may prove to be transient. I am yet to
be persuaded that revalorization is part of our law of debt
collection.”
We
respectfully associate ourselves within those sentiments.
Even
in England, the same principle applies. In Treseder
& Anor v Co-operative Insurance Society Ltd
(1956)
2 QB 127 (CA)…, DENNING LJ had this to say:-
“…,.
In England, we have always looked upon a pound as a pound whatever
its international value…,. In all our dealings we have disregarded
alike the debasement of the currency by kings and rulers or the
depreciation of it by the march of time or events…,. A man who
stipulates for a pound must take a pound when payment is made
whatever the pound is worth at that time.”
The
learned judge commented on currency nominalism in the Netherlands and
German legal systems which he found to be similar and then went on to
consider the reasons commonly given for currency nominalism in these
words;
“…,.
It would represent a revolutionary transformation of our legal system
if courts were to be called upon to determine the true economic value
(in terms of purchasing power) of all obligations sounding in money.
I need not, however, labour the point; currency nominalism, for
whatever reason, is firmly entrenched in our law.”
It
is beyond caevil that the first respondent's debt sounded in money
and the judgment was given in March 2008 with the specific directive
that the values of whatever was damaged by the appellant were to be
as at the time of judgment. Those values were in Zimbabwe dollars and
not in US dollars. The principle of currency nominalism was therefore
still applicable. It was, accordingly, idle for the first respondent
to revalorise its claim on execution. It ought to have made a court
application for the conversion of the currency.
3.
WHETHER THE WARRANT WAS FATALLY DEFECTIVE
Order
26 Rule 1(1) of the Magistrates Court Civil Rules provides that a
warrant is issued and signed by the Clerk of Court and addressed to
the Messenger of Court. Subrule (2) provides that such process may be
sued out by any person in whose favour any such judgment has been
given.
In
casu,
the warrant was sued out by the first respondent as the judgment
creditor. Rule 323 of the High Court Rules is the corresponding
provision to the Magistrates' Court's Order 26 Rule 1(2) and it
has the addition that suing out a writ of execution is done at the
risk of the party who does so. Hartley
v Hartley
1999 (1) ZLR 431 (SC) held that the judgment creditor ran the risk of
liability for costs if the writ were set aside.
In
casu,
while the warrant was not defective in form, it was fatally defective
in content due to the revalorization. It therefore cannot be allowed
to stand.
In
the event, it is ordered that:
(i)
The appeal succeeds with costs.
(ii)
The second respondent is ordered to release the appellant's
attached property.
(iii)
If the first respondent still wishes to pursue the enforcement of the
judgment it must, first, on notice to the appellant, make an
application before the Magistrate's Court for leave to revalorise
the claim as well as proof of the damages.
