Nzima v Phiri (1 of 2026) [2025] ZWBHC 205 (5 January 2025)

3 HB 01/26 R-HC 2227/22 SIZAKELE NZIMA Versus SAZINI PHIRI H IGH COURT OF ZIMBABWE MPOKISENG DUBE J BULAWAYO 16 -17 JUNE, 1 & 2 JULY AND 5 JANUARY 2025 Summons commencing Action- Acknowledgement of debt. B.Z Mlilo, for the plaintiff M.T Nleya, for the defendant MPOKISENG DUBE J: This is a claim for payment in the sum of USD 58 873.00 based on an acknowledgement of debt. The defendant herein resists payment on two fronts viz: That while admitting to signing the acknowledgment of debt, she did so under duress.That she borrowed only a sum of USD10 000.00 but it ballooned to the claimed figure as a result of illegal interests levied on a weekly basis. Brief facts Plaintiff and defendant are or were friends before this fall out. They are said to come from the same rural area and have been members of the same banking club commonly known as stokvel. Plaintiff avers that defendant ran a restaurant and flea market stalls. To spruce up her clothing business she would routinely borrow cash to go and buy stocks in Tanzania, Mozambique and South Africa. She would also borrow cash to buy food stuffs for her restaurant business, at times to pay rentals or pay salaries. These sums were not advanced at once but in dribs and drabs that were not recorded based on mutual trust. At some point the defendant is said to have borrowed a lumpsum amount of USD15 000.00 to met legal fees after her husband got arrested. The defendant on her part does not deny having borrowed the cash and for the purposes claimed. She denies the quantum and that she signed an acknowledgment of debt after she was threatened with the death of her daughter and her husband going insane as the money borrowed was “ancestral money” alternatively that when she went to the plaintiff’s lawyers she only went to negotiate a payment plan. She went with her husband for mutual support. When they got there they were confronted with an acknowledgement of debt bearing an amount as claimed in the summons. It is her husband who protested. He was ejected from the lawyers’ offices. She remained alone and vulnerable. That is why she signed the document. Defendant’s husband Sylvester Phiri testified in her support. He stated that defendant borrowed the cash without his knowledge. He got to know about the debt when plaintiff visited their home to demand payment. Defendant called him to the bedroom and told him that she owed plaintiff cash. When he questioned what it was for, she remained mum. He subsequently had a meeting with the plaintiff wherein he undertook to reduce the debt on condition she stopped computing interest of 25% weekly. The amount due then was said to be USD20 000.00. He paid 3 instalments and stopped after the interest kept ballooning. Plaintiff threatened him and their daughter with witchcraft. She told him that the witchcraft will not work on him and their child as they benefited nothing from the said loan. He accompanied the defendant to the lawyers and objected to signing an acknowledgment of debt. He was thrown out as being disruptive. He called the defendant to leave with him but she refused. He even tried to pull her out but she refused. He left and did not witness the signing. When the defendant came out she denied having signed anything. The issue central to this dispute is the validity and enforceability of the acknowledgment of debt signed. The authenticity of the document is not disputed. It is only said to be a product of duress. The law The acknowledgement of debt attached and marked Exhibit “D” is in the form of a contract. It is signed by both parties in front of subscribing witnesses. The defendant acknowledges her indebtedness in the sum of USD 58 873.00 towards the plaintiff. She binds herself to pay the debt only in the United States Dollar currency. She acknowledges that at the date of signature the debt is due and payable. She confers some rights on the creditor who may grant an extension of time, or make other arrangements with the defendant. Each party chose their domicilium citandi et executandi. The law on contracts is quite settled. In the matter of Magodora v Care International 2014(1) ZLR 397 (S) it was held that: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy. See Wells v South African Alumenite Company 1927 AD 69 at 73; Christie: The Law of Contract in South Africa (3rd ed.) at pp. 14-15. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms. See South African Mutual Aid Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) at 615D; First National Bank of SA Ltd v Transvaal Rugby Union & Another 1997 (3) SA 851 (W) at 864E-H.” It was held in a further case of ZFC Limited v Tapiwa Joel Furusa SC 15-18 that “Contracts are sacrosanct unless evidence shows that they were not entered into freely and voluntarily” (See also: Zimra v Mike Harris Toyota Pvt Ltd and Anor HH614-23) In the present matter the defendant seems to know more than she tells. She is an adult who at all material times was free to contract as high or as low as she may wished. Our law does not require her to consult nor seek authority from her husband before executing a contract. She is a business lady in her own right. She made business decisions she found appropriate to spruce up her business. In other words, her husband is completely irrelevant in this matrix. He volunteered his involvement when defendant did not seek it. He had no business going to the lawyers to object to the signing of an acknowledgment of debt as he was not the debtor nor the debtor’s lawyer. That is why despite being verbally told to leave the office of the lawyer defendant refused. When she was physically pulled, she resisted. These are hallmarks of an adult of full legal capacity, who in her sound and sober mind elected to bind herself. The threats of sorcery and other such matters related to the unknown realm of black magic are just but a ruse if not a red herring. The issue of quantum of the debt falls on its face in light of the signed acknowledgement of debt. Counsel on both sides agree on the law applicable to acknowledgments of debt. That they are ex-facie accepted as liquid documents unless duress is proven. I agree entirely with the case law authorities they cited on either end. Plaintiff’s counsel in his closing submissions submitted thus: “In Sibanda v Machaidze 2010 (1) ZLR 216 (H), the term liquid document was defined as follows: “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 agree with him entirely. On the other hand, counsel for the defendant submitted thus: “The elements necessary to set aside an acknowledgement of Debt on the grounds of duress were described by Corbett J, In Ared & another v Astra Furnishers (Pty) Ltd 1974 (1)SA 298 (C) as follows: “It is clear that a contract may be vitiated by duress (metus), the raison d'etre of the rule apparently being that intimidation or improper pressure renders the consent of the party subjected to duress no true consent............duress may take the form of inflicting physical violence upon the person of a contracting party or inducing on him a fear by means of threats. Where a person seeks to set aside a contract, or resist the enforcement of a contract on the ground of duress based on fear, the following elements must be established: The fear must be a reasonable one.It must be caused by the threat of some considerable evil to the person concerned or their familyIt must be a threat of imminent or inevitable evil.The threat or intimidation must be unlawful and contra bonos moresThe moral pressure use must have caused damage” Again I whole heartedly agree with counsel. However, I am of the respectful view that the actions of defendant in casu are not indicative of anyone who was acting under duress. If her husband is her pillar of strength she did not act as one who needed that support. She at all material times carried herself as one who knew exactly what she was doing and lawfully bound herself. It is for that reason that I make the following disposition. Disposition The plaintiff’s claim succeeds and the following order is made: (a) Defendant to pay the sum of US$58 873.00 (fifty-eight thousand eight hundred and seventy-three United States dollars) or the equivalent payable in Zimbabwean dollars (ZWL$) at the prevailing interbank rate on the day of payment. (b) Interest on the said sum of US$58 873.00 (fifty-eight thousand eight hundred and seventy-three United States dollars), or the equivalent payable in Zimbabwean dollars (ZWL$) at the prevailing interbank rate on the day of payment, at the prescribed rate of 5% calculated from the date of issue of the Summons. (c) Costs of suit on an attorney and client scale. Webb, Low & Barry Inc Ben Baron & Partners, plaintiff’s legal practitioners Drau Law Chambers, defendant’s legal practitioners 3 HB 01/26 R-HC 2227/22 3 HB 01/26 R-HC 2227/22 SIZAKELE NZIMA Versus SAZINI PHIRI H IGH COURT OF ZIMBABWE MPOKISENG DUBE J BULAWAYO 16 -17 JUNE, 1 & 2 JULY AND 5 JANUARY 2025 Summons commencing Action- Acknowledgement of debt. B.Z Mlilo, for the plaintiff M.T Nleya, for the defendant MPOKISENG DUBE J: This is a claim for payment in the sum of USD 58 873.00 based on an acknowledgement of debt. The defendant herein resists payment on two fronts viz: That while admitting to signing the acknowledgment of debt, she did so under duress. That she borrowed only a sum of USD10 000.00 but it ballooned to the claimed figure as a result of illegal interests levied on a weekly basis. Brief facts Plaintiff and defendant are or were friends before this fall out. They are said to come from the same rural area and have been members of the same banking club commonly known as stokvel. Plaintiff avers that defendant ran a restaurant and flea market stalls. To spruce up her clothing business she would routinely borrow cash to go and buy stocks in Tanzania, Mozambique and South Africa. She would also borrow cash to buy food stuffs for her restaurant business, at times to pay rentals or pay salaries. These sums were not advanced at once but in dribs and drabs that were not recorded based on mutual trust. At some point the defendant is said to have borrowed a lumpsum amount of USD15 000.00 to met legal fees after her husband got arrested. The defendant on her part does not deny having borrowed the cash and for the purposes claimed. She denies the quantum and that she signed an acknowledgment of debt after she was threatened with the death of her daughter and her husband going insane as the money borrowed was “ancestral money” alternatively that when she went to the plaintiff’s lawyers she only went to negotiate a payment plan. She went with her husband for mutual support. When they got there they were confronted with an acknowledgement of debt bearing an amount as claimed in the summons. It is her husband who protested. He was ejected from the lawyers’ offices. She remained alone and vulnerable. That is why she signed the document. Defendant’s husband Sylvester Phiri testified in her support. He stated that defendant borrowed the cash without his knowledge. He got to know about the debt when plaintiff visited their home to demand payment. Defendant called him to the bedroom and told him that she owed plaintiff cash. When he questioned what it was for, she remained mum. He subsequently had a meeting with the plaintiff wherein he undertook to reduce the debt on condition she stopped computing interest of 25% weekly. The amount due then was said to be USD20 000.00. He paid 3 instalments and stopped after the interest kept ballooning. Plaintiff threatened him and their daughter with witchcraft. She told him that the witchcraft will not work on him and their child as they benefited nothing from the said loan. He accompanied the defendant to the lawyers and objected to signing an acknowledgment of debt. He was thrown out as being disruptive. He called the defendant to leave with him but she refused. He even tried to pull her out but she refused. He left and did not witness the signing. When the defendant came out she denied having signed anything. The issue central to this dispute is the validity and enforceability of the acknowledgment of debt signed. The authenticity of the document is not disputed. It is only said to be a product of duress. The law The acknowledgement of debt attached and marked Exhibit “D” is in the form of a contract. It is signed by both parties in front of subscribing witnesses. The defendant acknowledges her indebtedness in the sum of USD 58 873.00 towards the plaintiff. She binds herself to pay the debt only in the United States Dollar currency. She acknowledges that at the date of signature the debt is due and payable. She confers some rights on the creditor who may grant an extension of time, or make other arrangements with the defendant. Each party chose their domicilium citandi et executandi. The law on contracts is quite settled. In the matter of Magodora v Care International 2014(1) ZLR 397 (S) it was held that: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy. See Wells v South African Alumenite Company 1927 AD 69 at 73; Christie: The Law of Contract in South Africa (3rd ed.) at pp. 14-15. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms. See South African Mutual Aid Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) at 615D; First National Bank of SA Ltd v Transvaal Rugby Union & Another 1997 (3) SA 851 (W) at 864E-H.” It was held in a further case of ZFC Limited v Tapiwa Joel Furusa SC 15-18 that “Contracts are sacrosanct unless evidence shows that they were not entered into freely and voluntarily” (See also: Zimra v Mike Harris Toyota Pvt Ltd and Anor HH614-23) In the present matter the defendant seems to know more than she tells. She is an adult who at all material times was free to contract as high or as low as she may wished. Our law does not require her to consult nor seek authority from her husband before executing a contract. She is a business lady in her own right. She made business decisions she found appropriate to spruce up her business. In other words, her husband is completely irrelevant in this matrix. He volunteered his involvement when defendant did not seek it. He had no business going to the lawyers to object to the signing of an acknowledgment of debt as he was not the debtor nor the debtor’s lawyer. That is why despite being verbally told to leave the office of the lawyer defendant refused. When she was physically pulled, she resisted. These are hallmarks of an adult of full legal capacity, who in her sound and sober mind elected to bind herself. The threats of sorcery and other such matters related to the unknown realm of black magic are just but a ruse if not a red herring. The issue of quantum of the debt falls on its face in light of the signed acknowledgement of debt. Counsel on both sides agree on the law applicable to acknowledgments of debt. That they are ex-facie accepted as liquid documents unless duress is proven. I agree entirely with the case law authorities they cited on either end. Plaintiff’s counsel in his closing submissions submitted thus: “In Sibanda v Machaidze 2010 (1) ZLR 216 (H), the term liquid document was defined as follows: “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 agree with him entirely. On the other hand, counsel for the defendant submitted thus: “The elements necessary to set aside an acknowledgement of Debt on the grounds of duress were described by Corbett J, In Ared & another v Astra Furnishers (Pty) Ltd 1974 (1)SA 298 (C) as follows: “It is clear that a contract may be vitiated by duress (metus), the raison d'etre of the rule apparently being that intimidation or improper pressure renders the consent of the party subjected to duress no true consent............duress may take the form of inflicting physical violence upon the person of a contracting party or inducing on him a fear by means of threats. Where a person seeks to set aside a contract, or resist the enforcement of a contract on the ground of duress based on fear, the following elements must be established: The fear must be a reasonable one. It must be caused by the threat of some considerable evil to the person concerned or their family It must be a threat of imminent or inevitable evil. The threat or intimidation must be unlawful and contra bonos mores The moral pressure use must have caused damage” Again I whole heartedly agree with counsel. However, I am of the respectful view that the actions of defendant in casu are not indicative of anyone who was acting under duress. If her husband is her pillar of strength she did not act as one who needed that support. She at all material times carried herself as one who knew exactly what she was doing and lawfully bound herself. It is for that reason that I make the following disposition. Disposition The plaintiff’s claim succeeds and the following order is made: (a) Defendant to pay the sum of US$58 873.00 (fifty-eight thousand eight hundred and seventy-three United States dollars) or the equivalent payable in Zimbabwean dollars (ZWL$) at the prevailing interbank rate on the day of payment. (b) Interest on the said sum of US$58 873.00 (fifty-eight thousand eight hundred and seventy-three United States dollars), or the equivalent payable in Zimbabwean dollars (ZWL$) at the prevailing interbank rate on the day of payment, at the prescribed rate of 5% calculated from the date of issue of the Summons. (c) Costs of suit on an attorney and client scale. Webb, Low & Barry Inc Ben Baron & Partners, plaintiff’s legal practitioners Drau Law Chambers, defendant’s legal practitioners