2
HB 113 /24
HC 1284/23
TENDAI BONDE
Versus
NATIONAL FOODS LIMITED & ANOTHER
IN THE HIGH COURT OF ZIMBABWE
MANGOTA J
BULAWAYO 7 MAY, 11 JUNE, 26 JUNE AND 5 SEPTEMBER 2024
Applicant in person.
Ms V Chagonda for the 1st Respondent.
JUDGMENT
MANGOTAJ
The applicant, a self-actor, applies for suspension of sale in execution of his house which is situated in the District of Bulawayo. The house, Stand number 370, Nketa 6 Township of Lot 400A, Umganwini, (“the property”), is 375 square meters in extent. It is held under Deed of Transfer number 114/2018.
The property was placed under judicial attachment by the first respondent to whom the applicant allegedly owes certain sums of money. He claims that he settled his indebtedness to the respondents. He insists that a reconciliation of the sums which he paid to the respondents be undertaken in terms of the application which he filed under HC 54/23. He states that his family and him stand to suffer irreparable prejudice if his property is sold to recover an undetermined sum of money which, according to him, is a trifling which he allegedly owes to the respondent(s). The property, he claims, is co-owned by his wife and him in equal shares. He avers that, despite his settlement of the debt of ZWL 138 628, the first respondent claims that he still owes it the sum of USD 638 which arises from participatory writs and, in particular, the sheriff’s costs. He moves me to grant the application in terms of the draft order which he attached to his founding papers.
The first respondent opposes the application. The second respondent did not file any notice of opposition. My assumption is that he intends to abide by my decision.
The first respondent (“the respondent”) raised two preliminary matters which it abandoned at the hearing of the application preferring to deal with the merits of the case more than on technicalities. It disputed the allegation which is to the effect that the applicant co-owns the property with his wife. The applicant, it claims, owns the property alone. HC 54/23, it avers, is an urgent chamber application in terms of which the applicant sought to stay execution of the order which the court entered for it. It states that the applicant is aware of the sum of USD 638 which are costs of execution which it paid to the second respondent. The applicant, it insists, should therefore repay the sum to it. The applicant, it states, must produce a receipt to prove that he paid the sum of USD 638 to it. The applicant’s alleged prejudice is, according to it, without merit. It insists that he failed to pay his debt and he cannot therefore cry foul over its effort to recover what he owes to it. It states that the outstanding debt of USD 638 are regulated costs of execution. It avers that the sum of USD 638 is a legitimate cost which it paid for execution and it is therefore entitled to recover the same from the applicant. It moves me to dismiss the application with costs which are at attorney and client scale.
A litigant in whose favour judgment is entered will have satisfied the court of the bona fides of his cause of action. He (includes she) will have proved his case on a preponderance of probabilities. Once judgment has been entered for him, the litigant’s next port of call is to enforce his well-deserved judgment. He enforces it by way of a garnishee order, a contempt of court order or by way of attaching and taking into execution the property-movable or immovable- of the judgment debtor. Any of the mentioned routes remains open to him.
A judgment debtor who seeks to stop or stay enforcement of a judgment has the option of applying through the chamber book for such stay of execution. He cannot just apply for stay of execution without giving reasons for such stay. He can, for instance, move the court to stay execution of judgment on the grounds that he settled his indebtedness to the judgment creditor in full. He cannot move the court by the mere allegation that he paid the debt. He should produce real evidence which shows that he paid the debt in full, including the attendant costs of suit.
It is, in point of fact, on him who alleges that the burden of proof rests: R v Difford, 1937 AD 370 at 373; S v Mapfumo & Others, 1983 (1) ZLR 250 (S); Van Der Linden, Institutes of Holland, 3rd edition, page 155 in which the following excerpts appear:
the onus of proof is on him who affirms and not on him who denies;
the onus of proof is on the plaintiff, not on the defendant who, on failure of proof of the plaintiff must be absolved, although he himself has not proved anything;
if the plaintiff and the defendant both state a fact in a different way, the plaintiff must first prove that which he affirms.
It is in the letter and spirit of the above-stated precedent and/or authority that the applicant who claims to have settled his indebtedness to the respondent is called upon to show the manner in which he settled the debt. He is moving me to stay execution of the judgment debt which the court entered against him. He premises his motion on the allegation that he settled his debt towards the respondent in full. He alleges. He must therefore prove. He does not prove by his mere say so. He proves by way of producing concrete evidence of his payment of the debt(s).
The respondent, on the other hand, does not have to prove anything. It premises its claim on the judgment which has been entered in its favour. The judgment therefore remains its point of strength. The statement which it makes is that the applicant’s assertion which is to the effect that he settled his indebtedness to it is untrue. He, it insists, owes certain sums of money to it and hence its attachment of his property for purposes of selling it to recover its money from him. The property, it claims, belongs to the applicant alone. He does not co-own it with his wife as he is having me believe, it insists.
Annexure NFL3 which the respondent attached to its notice of opposition is relevant. The annexure is the title deed of the applicant’s property. It appears at page 47 of the record. It shows that title of the property is registered in the names of the applicant only. His wife’s names do not appear on the annexure.
The applicant, it is evident, was/is not being candid with me. He is, in fact, lying when he states, as he does in paragraph 7, page 7, of his founding affidavit, that the property is co-owned by his wife and him. The truth of the matter is that it is not co-owned. It is owned by him alone. It is not clear as to what prompted the applicant to lie as he did. What is clear, however, is that whatever caused the applicant to tell a lie under oath has the effect of denting his own side of the case in a very devastating manner.
Because the applicant continued to question what he paid and what he still owes to the respondent, I directed that the respondent and him should meet and discuss the stated issue. I directed the applicant to bring onto the discussion table the figures of what he claims to have paid to the respondent and the latter to bring onto the same figures of what it claims is owed to it by the applicant with a justification for the same. The meeting, it was envisaged, would resolve the dispute of the parties in a conclusive manner as well as shed clear light on their way forward.
The meeting of the applicant and the respondent did not yield any meaningful result. It did not do so for the simple reason that the second respondent who was/is a significant player in the resolution of the parties’ dispute was not in the equation. His input into the final reconciliation of the figures remained a sine qua non aspect of the resolution of the dispute. It is for the mentioned reason that I directed the three parties who are the applicant, on the one hand, and the first and second respondents, on the other, to meet, compare notes and chart a way forward together for the benefit of all three of them. The aim and object of the meetings were for them to find each other, so to speak. The meetings were premised on the assertion of the applicant who kept on stating that, if what he owes to the respondents is made known to him, he would pay it off and, in the process, save his house from being placed under the hammer.
The respondent stated, in its notice of opposition, that the applicant owes it the sum of USD 638. It made the statement in question in paragraphs 14.2 and 14.3 of the same. It, in fact, challenged the applicant to produce evidence of his payment of the stated sum of money to it. The applicant, it is observed, did not deny the assertion of the respondent in the above-mentioned regard. He, in short, did not ever suggest that he paid the stated sum of money to the respondent.
It is a trite position of the law that what is not denied in affidavits is taken as having been admitted: Moresby-white v Moresby-white, 1972 (1) RLR 199 at 203 E-H; 1972 (3) SA 222 (RAD) at 224 and Gordon v Tarnow, 1947 (3) SA 525 (AD) at 531-532 wherein Davies AJA enunciated the principle in the following words:
“But this admission in the plea is of the greatest importance for it is what Wigmore (paras 2588-2590) calls a judicial admission (of the confessio judicialiis) of Voet (42.2.6) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact and incompetent for the other party making it to adduce evidence to contradict it”.
The respondent explained, during submissions, the origin of the sum of USD 638. It stated that a portion of the execution costs of the immovable property is paid in United States dollars. It claims that it paid the said sum to the second respondent at the time that it instructed the latter to attach and take into execution the house of the applicant. It avers that it paid the following sums to the second respondent in pursuance of the attachment of the house:
security deposit of USD 164.00 – and
sheriff’s fees of USD 638 making a total payment of USD 802 which it seeks to recover from the applicant.
The respondent, once more, gives a clear and unambiguous explanation of what the applicant owes to it. The sum which it gives is not a thump-sucked figure as the applicant would have me believe. It is a clear and straightforward debt which he is enjoined to pay off. He cannot wish it away.
The statement of account which the first and second respondents produced after their meeting with the applicant shows that the latter owes the respondent the sum of USD 842.16. Both of them agree that the applicant over-paid the respondent in the sum of RTGS dollars 280 000. This, they assert, translates to USD 49.15 going by the conversion rate of the date. Simple mathematical calculation shows that he still owes the respondent the sum of USD793.01. The outstanding balance arises from subtracting the sum of USD 49.15 which is due to the applicant from the sum of USD 842.16 which he owes to the respondent.
The long and short of the above-observed matter is that the applicant is indebted to the respondent in a substantial sum of money. The respondents’ statement is that he cleared the local currency component of his debt but did not pay off his debt as it appears in United States dollars. He, on his part, does not show or even make any effort to explain away the predicament into which the respondents placed him. All what he is able to state is that he paid his debt in full but does not prove whether or not he paid the foreign currency component of the debt, as the law enjoins him to have done.
The lone reconciliation which the applicant attached to his side of the case does not have any United States dollar component on it. It is all in the local currency and this, according to evidence which is filed of record, is not in sync with the law of attachment of immovable property for purposes of selling the same in execution of a judgment.
The applicant’s continued assertion which is to the effect that he owes nothing to the respondent is without merit. He owes, it has already been established, a substantial sum of money to the respondent. He does not prove that he paid the United States dollar component of the debt. The court bent over backward to ascertain if his statement which is to the effect that he cleared his indebtedness to the respondent has merit. It allowed him to sit down with the respondents to compare notes and discover what he really owes to the respondent. Even when the discovery was made, he unreasonably persisted with his statement which is to the effect that he owes nothing to anyone.
As a lay person who is not familiar with the law of procedure especially with regard to costs which continue to mount when one persists with unsuccessful litigation, as he did in the circumstances of his case with the respondent, the position which the applicant takes may be understandable. However, from the discourse which I did have with him during the hearing of the application, I remained satisfied that he is intelligent enough to understand not only that he owes a substantial sum of money to the respondent but also that he is duty-bound to repay his debt to the judgment creditor.
The applicant failed to prove his case on a balance of probabilities. The application is, in the premise, dismissed with costs.