GETBUCKS MICROFINANCE BANK LIMITED v MASHUNGUPA and Another (186 of 2025) [2025] ZWHHC 186 (20 March 2025)

3 HH 186-25 HCH 4940/24 GETBUCKS MICROFINANCE BANK LIMITED versus SIMBAYI MASHUNGUPA and ANTHIA MASHUNGUPA HIGH COURT OF ZIMBABWE DEMBURE J HARARE: 20 February & 20 March 2025 Provisional Sentence Application T W Nyamakura, for the plaintiff H Mawema, for the defendants [1] DEMBURE J: This is a provisional sentence matter filed in terms of rule 14(1) of the High Court Rules, 2021. On 20 February 2025, the court, after hearing oral arguments from the parties’ legal practitioners, issued an ex tempore judgment the operative part of which read as follows: “1. The claim for provisional sentence be and is hereby granted. 2. The 1st and 2nd Defendants shall jointly and severally, the one paying the other to be absolved, pay the Plaintiff the sum of US$30,018.73 together with interest at the rate of 9% per month plus default interest at the rate of 15% per annum with effect from 1 November 2024 to the date of full payment. 3. The 1st Defendant’s property called Stand 6214 Gweru Township of Gwelo Township Lands, measuring 1750 square metres Held under Deed of Transfer Number 0001272/2022 be and is hereby declared specially executable. 4. The Defendants shall jointly and severally, the one paying the other to be absolved, pay costs of suit on an attorney and client scale.” On 10 March 2025, the defendants’ legal practitioners requested the written reasons for the court’s decision. These are they. FACTUAL BACKGROUND [2] The plaintiff is Getbucks Microfinance Bank Limited, a registered company. The first and second defendants are Simbarashe and Anthia Mashungupa all adult natural persons. [3] On 1 February 2023, the first and second defendants executed a surety mortgage bond number 00000067/2023 in favour of the plaintiff over a certain piece of land situate in the District of Gwelo Called Stand 6214 Gweru Township of Gwelo Township Lands measuring 1 750 square metres held under Deed of Transfer Number 0001272/2022 dated 17 August 2022. The capital sum loaned and advanced by the plaintiff under the bond was the sum of US$45,000.000 payable with interest on that amount at the rate of 9% per month plus default interest at the rate of 15% per annum. The bond was registered with the Deeds Registry at Bulawayo. [4] On 6 November 2024, the plaintiff issued summons for provisional sentence to recover the outstanding sum of US$30,018.73 due from the defendants. It was the plaintiff’s case that the defendants owed it a total amount of USS$30,018.73 as at 5 November 2024 as more fully appeared from a Certificate of Indebtedness issued in terms of Clause 11 of the mortgage bond. It was further alleged that the amount claimed had become due and payable to the plaintiff after the defendants failed to honour their obligations and make payment despite demand. [5] The summons was duly served on the defendants. The matter was set down for hearing on the unopposed roll on 4 December 2024. On 3 December 2024, the defendants filed a notice of opposition and opposing affidavits contesting the claim. They contended that the provisions of the mortgage bond were compromised by subsequent payments and arrangements between the plaintiff and the defendants. They alleged that the acknowledgement of debt signed on 5 May 2023 shows that the debt as of that date was US$17,000.00. [6] It was further pleaded that the plaintiff failed to disclose that it had sued the defendants and Trailken Investments (Private) Limited in the Magistrates Court under Case No. GWGC 1811/23. In that claim, the plaintiff had sued them for US$8,643.71 based on the certificate of indebtedness confirming that as at 31 October 2023, the debt was US$8,643.71. They further stated that the Magistrates Court made some factual findings when it refused to grant summary judgment for the claim. It was also claimed that they had produced evidence showing that the sum due was less than what was being claimed. I must state, however, that no proof of the payments the defendants allegedly made to the plaintiff was produced. It was further alleged that the mortgage bond relied upon had been overtaken by events. [7] On 4 December 2024, this court, before Muremba J, removed the matter from the roll. The reason for the removal from the unopposed roll was for the matter to be determined on the opposed roll since the claim had been opposed. In its answering affidavit, the plaintiff argued that this claim and the one in the Magistrates Court are two distinct liabilities or arrangements. SUBMISSIONS FOR THE PLAINTIFF [8] Mr Nyamakura submitted that the plaintiff largely abides by the heads of argument filed for the plaintiff. He further submitted that the claim is based on two documents; the mortgage bond at p 8 and the certificate of indebtedness at p 15. It was also argued that for the purposes of provisional sentence, no bona fide defence has been raised by the defendants. The onus rests upon them to show that there was a compromise. The terms of the compromise are not stated. There is no explanation that the effect was to release them from their previous obligation. On what constitutes a compromise counsel referred the court to the case of Georgias v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S); 2000 (1) SA 126 (ZSC). [9] It was further submitted that the second part of the defendants’ defence is to attack the liquid document. A mortgage bond coupled with a certificate of indebtedness is conclusive proof of indebtedness for purposes of provisional sentence. See FBC Bank Ltd v Gesma (Pvt) Ltd & Ors HH 650/19 at p 7. The bank is suing for US$30,018.17 that is due. Mr Nyamakura also submitted that no defence has been pleaded at all. The acknowledgement is a completely different cause of action involving three parties not two. SUBMISSIONS FOR THE DEFENDANTS [10] Per contra, Mr Mawema submitted that he abides by the heads of argument filed for the defendants save to emphasise a few issues. It is the defendants’ submission that the cause of action vis-a-vis the provisional sentence relates to the certificate of indebtedness at p 15 of the record. The defendant bears the onus to show the court on a balance of probabilities that he or she enjoys prospects of success in the main matter. See Hicks v Dobriskey 1976 (1) RLR 220. The certificate is prima facie proof of the debt as stated in the mortgage bond. There is another certificate of indebtedness issued by the plaintiff at p 30. It acknowledges that the amount owing is US$8,643.17. The defendants have made reference to the Magistrates Court matter in which the plaintiff was claiming summary judgment on that figure. These factors go far to question the validity of the certificate the plaintiff’s claim is based. [11] Mr Mawema further argued that the defendants have managed to disturb the prima facie evidential value of the certificate of indebtedness adduced by the plaintiff to the extent that the certificate is no longer proof of indebtedness. The issue of the amount owing is now in issue and cannot be resolved on the papers. The defendants have discharged the onus. When the court queried that the defendants’ heads of argument appear to have abandoned the defence of compromise pleaded in the opposing affidavit counsel was quick to concede that there was no compromise. When further questioned as to the inconsistencies in the defence pleaded in the opposing affidavit of a compromise and the illegality now being advanced in the heads of argument, counsel again conceded that given the papers before the court, there was no bona fide defence. THE LAW [12] Provisional sentence is a summary procedure allowing a creditor with a liquid document to obtain a speedy judgment and execution before a full trial. It allows the creditor to obtain payment of the debt without having to wait for the final determination of the dispute between the parties. This position was enunciated in Zimbank v Interfin Merchant Bank of Zimbabwe (Pvt) Ltd 2005 (1) ZLR 114 (H) at 116G-117A where the court had this to say: “It is therefore in my view necessary to recall that the procedure of provisional sentence allows a creditor armed with a liquid document, to obtain payment of the debt without having to wait for the final determination of the dispute between the parties. Whilst a speedy remedy, provisional sentence is an extra-ordinary remedy based on the presumption of indebtedness created by the liquid document. It is a brisk and robust remedy granted by the court in appropriate cases, on the date of the hearing endorsed on the face of the summons, after the court has satisfied itself that the defendant has no probability of success in the principal case.” [13] This extraordinary remedy is provided for in terms of rule 14(1) of the High Court Rules, 2021 which provides as follows: “Where the plaintiff is the holder of a valid acknowledgment of debt, commonly called a liquid document, the plaintiff may cause a summons to be issued claiming provisional sentence on the said document.” It is trite that a mortgage bond is recognized as a liquid document as it is a record of an acknowledgment of indebtedness by the mortgagee. See FBC Bank Ltd v Gesma (Pvt) Ltd & Ors HH 650/19. ANALYSIS [14] Applying the above principles, it is common cause that there was a mortgage bond duly executed in favour of the plaintiff by the defendants for sum of US$45,000.00. It was not disputed that the same mortgage bond in particular clause 11 provides for a certificate of indebtedness being issued by the plaintiff as the conclusive proof of their indebtedness. That this was a valid acknowledgment of debt is beyond question. What the defendants are required to show to defeat a claim of this nature is a matter of settled law. In Zimbank v Interfin supra at 119A Makarau J (as she then was) stated as follows: “It appears to me that the law is well settled that the onus rests with the defendant in provisional sentence matters to show that he or she has probabilities of success in the main action. Such probabilities must be substantial and should not be mere conjecture. The probabilities must be based on facts laid out in the affidavit and not upon inferences to be drawn from the facts. See Hicks v Dobriskey 1976 (1) ZLR 218.” Accordingly, the settled law is that only a bona fide defence can defeat an application for provisional sentence. In Kingstons Ltd v L. D. Innerson (Pvt) Ltd SC 8/06 the court defined a bona fide defence to be: “…a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which if established, would entitle him to succeed”. [15] In casu, the defendants did not deny that they executed the mortgage bond in question nor deny that they bound themselves to the indebtedness it relates to. All that they alleged in the opposing affidavit is that there was a compromise. It is trite that a compromise is an agreement or contract whose terms must be stated. The parties must be clear about their rights thereto. In the case of Georgias v Standard Chartered Finance Zimbabwe Ltd supra what constitutes a compromise was fully explained as follows: “Compromise, or transactio, is the settlement by agreement of disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something - either diminishing his claim or increasing his liability… The purpose of compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment given by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless the right to rely thereon was reserved… As it brings legal proceedings already instituted to an end, a party sued on a compromise is not entitled to raise defences to the original cause of action… But a compromise induced by fraud, duress, justus error, misrepresentation, or some other ground for rescission, is voidable at the instance of the aggrieved party, even if made an order of court... Unlike novation, a compromise is binding on the parties even though the original contract was invalid or even illegal.” [16] If ever there was such a compromise the acknowledgement of debt signed on 5 May 2023 ought to have said so. The document should have clearly released the defendants from their previous obligation in the mortgage bond. A compromise must be clear in its terms. This position was also outlined by Makoni J (as she then was) in Afrasia Bank Zimbabwe v Riozim Zimbabwe Limited HH 279/17 at p 3 where it was stated that: “From the above definition it is clear that for a compromise to be valid, it must be concluded by parties, who are clear as to what their rights are. If parties are not clear as to what rights they are settling then the compromise would not have been properly concluded.” The same legal position was further reiterated in Golden Beams Development (Pvt) Ltd v Mabhena HH 296/21 as follows: “A compromise agreement is an agreement of the parties to amicably settle a dispute. A compromise agreement is a contract and is governed by the general principles of contract law. The formalities of a compromise are, offer and acceptance, consideration and capacity to enter into the contract. There must be mutual intent to settle the dispute and bring it to an end and reciprocal concessions in settlement of the dispute.” The above decision was upheld on appeal in the case of Mabhena v Golden Beams Development (Pvt) Ltd SC 29/23. [17] If the acknowledgement of debt in question was a compromise it should have said so. It did not and there is no evidence that such contract or agreement constituting a compromise was ever entered into to release the defendants from their previous obligation. It is also trite that an acknowledgement of debt can on its own found a separate cause of action. See Van Wyk v Tarcon (Pvt) Ltd SC 49/14. The fact that there was another acknowledgement of debt signed after the one embodied in the mortgage bond does not per se establish a compromise. Clearly, therefore, without it being proved that there was a compromise the acknowledgement of debt referred to by the defendants would by operation of the law stand independently from the mortgage bond and the certificate of indebtedness upon which this claim is based. I agree with Mr Nyamakura that the two are distinct liabilities or obligations. [18] The defendants failed to discharge the onus to show that they had probabilities of success in the main matter. The defendants failed to show that they had a bona fide defence to the claim. There was no evidence of any compromise. The defendants also made unsubstantiated allegations that they made some payments to reduce the indebtedness to less than US$8,643.71. They, however, placed nothing before the court as proof of payment. In their opposing affidavit, they simply claimed they owed the plaintiff less than US$8,643.71 but did not state how much should be due or how much they paid to reduce their indebtedness. It is trite that vague generalizations and bald assertions are not enough to discharge the onus of proving a bona fide defence with a possibility of success. See Mpofu v Mpofu HB 129/15. [19] In any case, Mr Mawema conceded at the hearing that there was no compromise in this case. This explains why this defence was abandoned in the defendants’ heads of argument. A new defence was then pleaded improperly in the heads of argument. The new defence in the heads of argument was now that the acknowledgement of debt relied upon is illegal. The other point was that the certificate of indebtedness dated 5 November 2024 was tainted with an illegality on the ground that it did not comply with the in duplum rule. This illegality defence advanced in the heads of argument was never pleaded in the opposing affidavit. The defendants’ case stood or fell on the grounds of opposition pleaded in their opposing affidavits. One cannot plead through heads of argument. This is the settled position of our law. Thus, in Van Brooker v Mudhanda & Anor and Pierce v Mudhanda & Anor SC 5/18 it was held that: “The purpose of heads of argument is to expound on the law applicable to the facts placed before the court, and one cannot plead through written submissions.” [20] Again, when the court queried the shift in the defence and the new defence of illegality now advanced in the defendants’ heads of argument, Mr Mawema realized the futility of his clients’ defences and he rightly conceded that there was no bona fide defence shown from the papers before the court. This sealed the defendants’ fate. There was nothing further required. DISPOSITION [21] In the premises, the court found the application for provisional sentence to be merited. I was satisfied that the defendants had no probability of success in the principal case, a position rightly conceded by their counsel. The court also considered that the interest and costs claimed were in accordance with the terms of the mortgage bond. These were contractual and could be recoverable. [22] It was for these reasons that the court entered the judgment aforestated. DEMBURE J: ……………………………………………….. Atherstone & Cook, plaintiff’s legal practitioners Kwande Legal Practitioners, defendants’ legal practitioners 3 HH 186-25 HCH 4940/24 3 HH 186-25 HCH 4940/24 GETBUCKS MICROFINANCE BANK LIMITED versus SIMBAYI MASHUNGUPA and ANTHIA MASHUNGUPA HIGH COURT OF ZIMBABWE DEMBURE J HARARE: 20 February & 20 March 2025 Provisional Sentence Application T W Nyamakura, for the plaintiff H Mawema, for the defendants [1] DEMBURE J: This is a provisional sentence matter filed in terms of rule 14(1) of the High Court Rules, 2021. On 20 February 2025, the court, after hearing oral arguments from the parties’ legal practitioners, issued an ex tempore judgment the operative part of which read as follows: “1. The claim for provisional sentence be and is hereby granted. 2. The 1st and 2nd Defendants shall jointly and severally, the one paying the other to be absolved, pay the Plaintiff the sum of US$30,018.73 together with interest at the rate of 9% per month plus default interest at the rate of 15% per annum with effect from 1 November 2024 to the date of full payment. 3. The 1st Defendant’s property called Stand 6214 Gweru Township of Gwelo Township Lands, measuring 1750 square metres Held under Deed of Transfer Number 0001272/2022 be and is hereby declared specially executable. 4. The Defendants shall jointly and severally, the one paying the other to be absolved, pay costs of suit on an attorney and client scale.” On 10 March 2025, the defendants’ legal practitioners requested the written reasons for the court’s decision. These are they. FACTUAL BACKGROUND [2] The plaintiff is Getbucks Microfinance Bank Limited, a registered company. The first and second defendants are Simbarashe and Anthia Mashungupa all adult natural persons. [3] On 1 February 2023, the first and second defendants executed a surety mortgage bond number 00000067/2023 in favour of the plaintiff over a certain piece of land situate in the District of Gwelo Called Stand 6214 Gweru Township of Gwelo Township Lands measuring 1 750 square metres held under Deed of Transfer Number 0001272/2022 dated 17 August 2022. The capital sum loaned and advanced by the plaintiff under the bond was the sum of US$45,000.000 payable with interest on that amount at the rate of 9% per month plus default interest at the rate of 15% per annum. The bond was registered with the Deeds Registry at Bulawayo. [4] On 6 November 2024, the plaintiff issued summons for provisional sentence to recover the outstanding sum of US$30,018.73 due from the defendants. It was the plaintiff’s case that the defendants owed it a total amount of USS$30,018.73 as at 5 November 2024 as more fully appeared from a Certificate of Indebtedness issued in terms of Clause 11 of the mortgage bond. It was further alleged that the amount claimed had become due and payable to the plaintiff after the defendants failed to honour their obligations and make payment despite demand. [5] The summons was duly served on the defendants. The matter was set down for hearing on the unopposed roll on 4 December 2024. On 3 December 2024, the defendants filed a notice of opposition and opposing affidavits contesting the claim. They contended that the provisions of the mortgage bond were compromised by subsequent payments and arrangements between the plaintiff and the defendants. They alleged that the acknowledgement of debt signed on 5 May 2023 shows that the debt as of that date was US$17,000.00. [6] It was further pleaded that the plaintiff failed to disclose that it had sued the defendants and Trailken Investments (Private) Limited in the Magistrates Court under Case No. GWGC 1811/23. In that claim, the plaintiff had sued them for US$8,643.71 based on the certificate of indebtedness confirming that as at 31 October 2023, the debt was US$8,643.71. They further stated that the Magistrates Court made some factual findings when it refused to grant summary judgment for the claim. It was also claimed that they had produced evidence showing that the sum due was less than what was being claimed. I must state, however, that no proof of the payments the defendants allegedly made to the plaintiff was produced. It was further alleged that the mortgage bond relied upon had been overtaken by events. [7] On 4 December 2024, this court, before Muremba J, removed the matter from the roll. The reason for the removal from the unopposed roll was for the matter to be determined on the opposed roll since the claim had been opposed. In its answering affidavit, the plaintiff argued that this claim and the one in the Magistrates Court are two distinct liabilities or arrangements. SUBMISSIONS FOR THE PLAINTIFF [8] Mr Nyamakura submitted that the plaintiff largely abides by the heads of argument filed for the plaintiff. He further submitted that the claim is based on two documents; the mortgage bond at p 8 and the certificate of indebtedness at p 15. It was also argued that for the purposes of provisional sentence, no bona fide defence has been raised by the defendants. The onus rests upon them to show that there was a compromise. The terms of the compromise are not stated. There is no explanation that the effect was to release them from their previous obligation. On what constitutes a compromise counsel referred the court to the case of Georgias v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S); 2000 (1) SA 126 (ZSC). [9] It was further submitted that the second part of the defendants’ defence is to attack the liquid document. A mortgage bond coupled with a certificate of indebtedness is conclusive proof of indebtedness for purposes of provisional sentence. See FBC Bank Ltd v Gesma (Pvt) Ltd & Ors HH 650/19 at p 7. The bank is suing for US$30,018.17 that is due. Mr Nyamakura also submitted that no defence has been pleaded at all. The acknowledgement is a completely different cause of action involving three parties not two. SUBMISSIONS FOR THE DEFENDANTS [10] Per contra, Mr Mawema submitted that he abides by the heads of argument filed for the defendants save to emphasise a few issues. It is the defendants’ submission that the cause of action vis-a-vis the provisional sentence relates to the certificate of indebtedness at p 15 of the record. The defendant bears the onus to show the court on a balance of probabilities that he or she enjoys prospects of success in the main matter. See Hicks v Dobriskey 1976 (1) RLR 220. The certificate is prima facie proof of the debt as stated in the mortgage bond. There is another certificate of indebtedness issued by the plaintiff at p 30. It acknowledges that the amount owing is US$8,643.17. The defendants have made reference to the Magistrates Court matter in which the plaintiff was claiming summary judgment on that figure. These factors go far to question the validity of the certificate the plaintiff’s claim is based. [11] Mr Mawema further argued that the defendants have managed to disturb the prima facie evidential value of the certificate of indebtedness adduced by the plaintiff to the extent that the certificate is no longer proof of indebtedness. The issue of the amount owing is now in issue and cannot be resolved on the papers. The defendants have discharged the onus. When the court queried that the defendants’ heads of argument appear to have abandoned the defence of compromise pleaded in the opposing affidavit counsel was quick to concede that there was no compromise. When further questioned as to the inconsistencies in the defence pleaded in the opposing affidavit of a compromise and the illegality now being advanced in the heads of argument, counsel again conceded that given the papers before the court, there was no bona fide defence. THE LAW [12] Provisional sentence is a summary procedure allowing a creditor with a liquid document to obtain a speedy judgment and execution before a full trial. It allows the creditor to obtain payment of the debt without having to wait for the final determination of the dispute between the parties. This position was enunciated in Zimbank v Interfin Merchant Bank of Zimbabwe (Pvt) Ltd 2005 (1) ZLR 114 (H) at 116G-117A where the court had this to say: “It is therefore in my view necessary to recall that the procedure of provisional sentence allows a creditor armed with a liquid document, to obtain payment of the debt without having to wait for the final determination of the dispute between the parties. Whilst a speedy remedy, provisional sentence is an extra-ordinary remedy based on the presumption of indebtedness created by the liquid document. It is a brisk and robust remedy granted by the court in appropriate cases, on the date of the hearing endorsed on the face of the summons, after the court has satisfied itself that the defendant has no probability of success in the principal case.” [13] This extraordinary remedy is provided for in terms of rule 14(1) of the High Court Rules, 2021 which provides as follows: “Where the plaintiff is the holder of a valid acknowledgment of debt, commonly called a liquid document, the plaintiff may cause a summons to be issued claiming provisional sentence on the said document.” It is trite that a mortgage bond is recognized as a liquid document as it is a record of an acknowledgment of indebtedness by the mortgagee. See FBC Bank Ltd v Gesma (Pvt) Ltd & Ors HH 650/19. ANALYSIS [14] Applying the above principles, it is common cause that there was a mortgage bond duly executed in favour of the plaintiff by the defendants for sum of US$45,000.00. It was not disputed that the same mortgage bond in particular clause 11 provides for a certificate of indebtedness being issued by the plaintiff as the conclusive proof of their indebtedness. That this was a valid acknowledgment of debt is beyond question. What the defendants are required to show to defeat a claim of this nature is a matter of settled law. In Zimbank v Interfin supra at 119A Makarau J (as she then was) stated as follows: “It appears to me that the law is well settled that the onus rests with the defendant in provisional sentence matters to show that he or she has probabilities of success in the main action. Such probabilities must be substantial and should not be mere conjecture. The probabilities must be based on facts laid out in the affidavit and not upon inferences to be drawn from the facts. See Hicks v Dobriskey 1976 (1) ZLR 218.” Accordingly, the settled law is that only a bona fide defence can defeat an application for provisional sentence. In Kingstons Ltd v L. D. Innerson (Pvt) Ltd SC 8/06 the court defined a bona fide defence to be: “…a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which if established, would entitle him to succeed”. [15] In casu, the defendants did not deny that they executed the mortgage bond in question nor deny that they bound themselves to the indebtedness it relates to. All that they alleged in the opposing affidavit is that there was a compromise. It is trite that a compromise is an agreement or contract whose terms must be stated. The parties must be clear about their rights thereto. In the case of Georgias v Standard Chartered Finance Zimbabwe Ltd supra what constitutes a compromise was fully explained as follows: “Compromise, or transactio, is the settlement by agreement of disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something - either diminishing his claim or increasing his liability… The purpose of compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment given by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless the right to rely thereon was reserved… As it brings legal proceedings already instituted to an end, a party sued on a compromise is not entitled to raise defences to the original cause of action… But a compromise induced by fraud, duress, justus error, misrepresentation, or some other ground for rescission, is voidable at the instance of the aggrieved party, even if made an order of court... Unlike novation, a compromise is binding on the parties even though the original contract was invalid or even illegal.” [16] If ever there was such a compromise the acknowledgement of debt signed on 5 May 2023 ought to have said so. The document should have clearly released the defendants from their previous obligation in the mortgage bond. A compromise must be clear in its terms. This position was also outlined by Makoni J (as she then was) in Afrasia Bank Zimbabwe v Riozim Zimbabwe Limited HH 279/17 at p 3 where it was stated that: “From the above definition it is clear that for a compromise to be valid, it must be concluded by parties, who are clear as to what their rights are. If parties are not clear as to what rights they are settling then the compromise would not have been properly concluded.” The same legal position was further reiterated in Golden Beams Development (Pvt) Ltd v Mabhena HH 296/21 as follows: “A compromise agreement is an agreement of the parties to amicably settle a dispute. A compromise agreement is a contract and is governed by the general principles of contract law. The formalities of a compromise are, offer and acceptance, consideration and capacity to enter into the contract. There must be mutual intent to settle the dispute and bring it to an end and reciprocal concessions in settlement of the dispute.” The above decision was upheld on appeal in the case of Mabhena v Golden Beams Development (Pvt) Ltd SC 29/23. [17] If the acknowledgement of debt in question was a compromise it should have said so. It did not and there is no evidence that such contract or agreement constituting a compromise was ever entered into to release the defendants from their previous obligation. It is also trite that an acknowledgement of debt can on its own found a separate cause of action. See Van Wyk v Tarcon (Pvt) Ltd SC 49/14. The fact that there was another acknowledgement of debt signed after the one embodied in the mortgage bond does not per se establish a compromise. Clearly, therefore, without it being proved that there was a compromise the acknowledgement of debt referred to by the defendants would by operation of the law stand independently from the mortgage bond and the certificate of indebtedness upon which this claim is based. I agree with Mr Nyamakura that the two are distinct liabilities or obligations. [18] The defendants failed to discharge the onus to show that they had probabilities of success in the main matter. The defendants failed to show that they had a bona fide defence to the claim. There was no evidence of any compromise. The defendants also made unsubstantiated allegations that they made some payments to reduce the indebtedness to less than US$8,643.71. They, however, placed nothing before the court as proof of payment. In their opposing affidavit, they simply claimed they owed the plaintiff less than US$8,643.71 but did not state how much should be due or how much they paid to reduce their indebtedness. It is trite that vague generalizations and bald assertions are not enough to discharge the onus of proving a bona fide defence with a possibility of success. See Mpofu v Mpofu HB 129/15. [19] In any case, Mr Mawema conceded at the hearing that there was no compromise in this case. This explains why this defence was abandoned in the defendants’ heads of argument. A new defence was then pleaded improperly in the heads of argument. The new defence in the heads of argument was now that the acknowledgement of debt relied upon is illegal. The other point was that the certificate of indebtedness dated 5 November 2024 was tainted with an illegality on the ground that it did not comply with the in duplum rule. This illegality defence advanced in the heads of argument was never pleaded in the opposing affidavit. The defendants’ case stood or fell on the grounds of opposition pleaded in their opposing affidavits. One cannot plead through heads of argument. This is the settled position of our law. Thus, in Van Brooker v Mudhanda & Anor and Pierce v Mudhanda & Anor SC 5/18 it was held that: “The purpose of heads of argument is to expound on the law applicable to the facts placed before the court, and one cannot plead through written submissions.” [20] Again, when the court queried the shift in the defence and the new defence of illegality now advanced in the defendants’ heads of argument, Mr Mawema realized the futility of his clients’ defences and he rightly conceded that there was no bona fide defence shown from the papers before the court. This sealed the defendants’ fate. There was nothing further required. DISPOSITION [21] In the premises, the court found the application for provisional sentence to be merited. I was satisfied that the defendants had no probability of success in the principal case, a position rightly conceded by their counsel. The court also considered that the interest and costs claimed were in accordance with the terms of the mortgage bond. These were contractual and could be recoverable. [22] It was for these reasons that the court entered the judgment aforestated. DEMBURE J: ……………………………………………….. Atherstone & Cook, plaintiff’s legal practitioners Kwande Legal Practitioners, defendants’ legal practitioners