No. SC 68/02
Appeal No. 127/01
CHISESE v BERNARD BUNU GARAMUKANWA
COURT OF ZIMBABWE
CJ, CHEDA JA & GWAUNZA AJA
JUNE 17 & SEPTEMBER 30, 2002
for the appellant
for the respondent
AJA: This is an appeal against a judgment of the High Court, in
which the respondent was ordered to pay the appellant
together with interest on the sum of $66 000 from 7 April
to 14 August 1995 and on the sum of $22 341.26
15 August 1995 to the date of payment.
respondent had also, initially, filed a cross-appeal in relation to
the part of the judgment concerning his counter-claim
in the court
he later abandoned such appeal.
events that gave rise to this dispute arose nine years ago, in 1993.
The appellant was then living and working in the United Kingdom,
while the respondent owned, and was resident on, a farm in Chegutu,
Zimbabwe. The two were related by marriage. The respondent
son studying at a university in the United Kingdom.
is not in dispute that at that time the respondents son was facing
imminent deportation from the United Kingdom following
fathers failure to pay the required tuition fees for his
education. Even though the parties gave different versions of the
background to, and nature of, the transaction, it is also not in
dispute that the appellant came to the rescue and, in three
paid the whole amount outstanding or required in
relation to the university fees in question. The fees totalled
£5 490 and
were paid in August and October 1993.
appellant averred that the fees paid constituted a loan to the
respondent, while the respondents evidence was that the fees
represented the purchase price of a tractor bought by the appellant
from him. Despite this conflict in the parties evidence,
learned trial judge correctly considered that the respondent did not
dispute that the fees were paid on his behalf by the appellant,
that he had a personal obligation to repay to the respondent in cash
or kind the amount disbursed. The trial judge was satisfied,
however, that at the time the fees were paid, there was no definite
arrangement between the parties as to how and when the amount
be repaid. Nor was anything said at that stage about interest.
is evident from this, and the many other conflicts in the parties
interpretation of the transaction, that they did not foresee
must have been regarded as an intra family arrangement of mutual
benefit, ever becoming the subject of protracted litigation
them. This explains the difficulty the appellant, in particular,
has had in attempting to fit the events surrounding this
into a legally acceptable mould.
considered the evidence of both parties, the learned judge in the
court a quo
accepted, correctly in my view, the evidence of the appellant that
while he avoided committing anything to writing, the respondent
later undertaken to repay the amount owed through the provision of a
tractor, valued at over Z$50 000 to the appellant.
appellant, however, never saw this tractor. On her visit to the
respondents farm in 1994, the appellant mistakenly believed
tractor in question was one of two that were then at the farm, which
both parties agree were not in a good state of repair.
respondent did not correct this misconception, and in addition
refrained from informing the appellant that the tractor meant
was at that time in Harare.
The trial judge, however,
rejected the evidence of the appellant that in addition to the
tractor, the respondent had agreed to build
for the appellant a
six-bedroomed house on a portion of his farm which he had,
incidentally, sold to a company owned by the appellant
considered the evidence before the court on this matter, I find no
fault with the trial judges rejection of that evidence.
will be gathered from this that the matter of the university fees was
not the only interaction between the parties. In November
signed a deed of sale, in terms of which the company, JV Itayi
Farming Enterprises (Private) Limited, represented
by the appellant,
bought a subdivision of the farm owned by the respondent. The
purchase price was to be paid, after the initial
deposit of $200 000,
in instalments over a period of time.
two agreements, though separate and distinct, nevertheless impacted
on the other in one significant way. This was that somewhere
the line, as the dispute concerning the repayment of the university
fees to the appellant by the respondent raged, it was agreed
arrears which the appellants company then owed to the respondent
be offset against part of the fees owed to the appellant
respondent. It is not in dispute that these arrears, which totalled
Z$43 658.74, fell short of the university fees
paid by the
appellant on behalf of the respondent. The arrears, by way of
set-off, were only paid after 14 August 1995.
acknowledging this set-off, the appellant, in her notice of appeal,
asserts that the balance owing to her was £3 011.
failed to find justification for this amount, especially since no
breakdown was provided to show how it was arrived at.
because the parties are agreed
the amount of fees paid by the appellant was £5 490; and
Z$43 658.74, offset against the £5 490 owed to the
appellant by the respondent, translated to £4 365.87
conversion rate of £1 = Z$10 (see the respondents summary of
evidence in the court a quo).
latter amount is subtracted from the £5 490 the balance is, by
my calculation, £1 124.13. I will accept, therefore,
this is the amount, exclusive of any interest, that the appellant was
entitled to claim against the respondent in the court
however, not the amount that the learned judge in the court a quo
found was owed to the appellant. She found, instead, that even
though the demand was made for the Zimbabwe dollar equivalent of
£5 490, less the set-off, the appellant had, herself,
quantified the Zimbabwe dollar equivalent at $66 000. This
is referred to in a letter written by the appellants legal
practitioners to the respondents legal practitioners. The
judge, after observing that the appellant in her evidence
confirmed this amount and that the respondent had not in effect
it, ruled that this was the Zimbabwean equivalent of what
was owed, minus the set-off of Z$43 658.74. She then granted
order alluded to in the first paragraph of this judgment.
is important to note that before this Court, neither party, albeit
for different reasons, accepts $66 000 as the amount
owed by the respondent to the appellant. The appellants claim is
as set out in the summons. The respondents position,
other hand, is that the total amount owing was Z$54 490.05,
leaving, after subtracting the set-off (i.e. Z$43 658.74),
balance of $10 831.31.
I will consider first the
correctness or otherwise of the learned trial judges finding that
the capital amount owed to the appellant
was Z$66 000. There
seems to be no dispute that the first reference to this amount was
made in a letter from the appellants
legal practitioners to the
respondent, in these words:
You are aware that
Mr Garamukanwa borrowed the sum of $66 000 from
Mrs Mapondera during 1993. (Mapondera being
appellants maiden name).
who appeared for the respondent in the court a
expressed doubt as to the basis for arriving at this figure since,
according to him, even the appellants lawyer was not aware
exchange rate at the time the letter was written. Indeed, there is
no indication that in that letter the exchange rate,
if any, that was
used to arrive at that figure, was mentioned. It appears the amount
was arbitrarily arrived at without reference
to any exchange rate.
Finally, it is significant that the letter in question was not a
letter of demand and, more significantly,
that in her summons the
appellant made no reference to the figure of Z$66 000, since her
claim was for payment of £5 490
less the amount that was
background, I am persuaded by the arguments advanced on behalf of
both parties that the court a quo
should not have accepted as proved that the amount of Z$66 000
was the Zimbabwean equivalent of the capital amount owed by the
respondent to the appellant. I will accept and proceed on the basis
that the amount, exclusive of any interest, that the appellant
rightly have claimed, both in the court a
and in this Court, is £1 124.13, payable in Zimbabwe dollars.
reaching this conclusion, I should note that I agree with the learned
trial judges finding that the appellant, on her earlier
the respondents farm in 1994 and after her return to the country
some time later, neither saw, nor had delivered to her,
in question. Nor is the delivery of the tractor in question still
an option. The respondent submitted he has since
sold the tractor
to someone else, and that he had not transmitted the money to the
appellant. Therefore, the respondent, not having
fully repaid the
amount owed to the appellant, even after the set-off, still owed the
appellant £1 124.13, exclusive of any
respondents argument that the appellant compromised her entire
claim by agreeing to the set-off, was correctly rejected by
In this connection, I would agree with Mr Pauls
contention that the failure of the agreed method of payment (i.e. the
tractor) did not extinguish the respondents obligation to
full amount owed.
then brings me to the crux of this appeal, which is, firstly, the
rate at which this amount is to be converted to Zimbabwe
secondly, the interest rate to be applied.
is contended for the appellant that the amount owing must be
converted to Zimbabwe dollars and paid, at the rate applicable at
time payment is effected by the respondent. The respondent, on the
other hand, argues that this amount must be paid, in Zimbabwe
dollars, at the rate prevailing at the time it was paid to the
university in question, in 1993.
the question of interest, the appellant contends this must be paid,
in relation to pound sterling, at the rate of 8% per annum,
the applicable rate in the Supreme Court of Adjudicature in the
United Kingdom. The respondent, on the other hand,
interest was payable by him since no agreement on this issue was ever
reached by the parties.
will deal first with the question of the currency of payment.
tenseness of the relationship between the parties, there is no doubt
that the two understood that the respondent was
not expected to pay
the appellant in pound sterling. Since the agreed means of payment,
that is the tractor, was in the end never
handed over to the
appellant (nor, as appears from the evidence before the court, did
the respondent ever make any serious attempt
to hand it over), I am
satisfied, as was the learned judge in the court a quo,
that it was in the contemplation of both parties that any payments
would be made in Zimbabwe and in Zimbabwe currency. This is
regardless of the fact that the details of where and how the money
was to be paid in Zimbabwe were not canvassed.
conduct of the parties also confirms this understanding. The amount
of the set-off was calculated and paid locally in Zimbabwe
In addition to his other defences, the respondent contends before
this Court that if Z$54 490.05 was the amount owing
in the sum of Z$43 658.74, then the balance due by him to the
appellant was $10 831.31. Even though no indication
this figure was arrived at was given, and despite it having been
rejected as the amount owing to the appellant, the amount
$66 000.00, referred to in the letter written to the
respondents legal practitioners on behalf of the appellant, was
in Zimbabwe dollars. All these figures were converted
from pound sterling to Zimbabwe dollars and were to be payable in
the light of this, I find there is no merit in the contention made
for the respondent that the agreement between the parties
as it contravened s 8(1) of the Exchange Control Regulations.
That section specifically prohibits actions that
involve the making,
or the incurring of any obligations to make, payment outside
be determined next is the issue of the exchange rate at which the
amount owing to the appellant should appropriately be converted.
That this is an issue at all is evidence of the parties neither
having specifically addressed their minds to the matter nor having
reached any agreement on it.
is contended as follows for the appellant:
the arrangement relating to the tractor been fulfilled (the)
appellant would have received a tractor which was worth at least
sterling equivalent of the amount of the loan. If in the year
between the time of the loan and the time of delivery there had
a devaluation of the Zimbabwean dollar, this would have no effect
because the appellant would not be receiving Zimbabwe dollars
would be receiving a tractor which would be worth at least
went on to say, accordingly, that the implied agreement between the
parties was that if the tractor was unacceptable, the respondent
would repay to the appellant the Zimbabwean equivalent of the pounds
sterling as at the date of payment.
is authority to support Mr Pauls
submission on the question of the rate at which the conversion should
be made. The learned author, R H Christie, in The
Law of Contract in South Africa
stated that the general rule governing situations like the one at
hand was laid out as follows in Barry
Colne & Co (Tvl) Ltd v Jacksons Ltd:
failing any such special
stipulation (i.e. that payment must be made in foreign currency),
payment may be made in the currency of
the place of payment
equivalent to the value there of the foreign currency. An
agreement, therefore, to pay 100 dollars at
Cape Town is
satisfied by payment of the value at Cape Town in Cape currency
of 100 dollars. At what date must the
value be taken, at the
date when the contract was entered into, or at the date fixed for
In a case where foreign
trade and foreign currency
is concerned, if one must look at the place of payment and not at the
place of contract, I think it is
not an unreasonable deduction that
as regards time one must look at the time of payment and not at the
time of contract a principle
which is in accord with modern
author continues at p 459, in relation to fluctuations in rates
place, time and currency of payment have been settled by reference to
the terms of the contract and to the above general
rules, where not
excluded by those terms, any profit or loss accruing to either party
as a result of fluctuations in rates of exchange
must lie where it
v African Life Assurance Society Ltd
1933 TPD 189; Aktiebolaget
Tratalja v Evelyn Haddon & Co Ltd
1933 CPD 156; Tropic
Plastic and Packaging Industry v Standard Bank of SA Ltd
1969 (4) SA 108 (D)].
these principles to the dispute at hand, it is evident that there is
no dispute as to the place of the contract. As for
the currency of
the payment, I have determined from the parties conduct, that it
was understood to be Zimbabwean currency. The
dispute as to the
time at which the rate of exchange applicable is to be reckoned must
therefore be resolved on the basis of the
authority cited above.
The time must be the time of payment and not the time of contract.
The question of exchange rates gain
or loss that arises in this
case, where the exchange rates for pound sterling vis-à-vis
the Zimbabwe dollar have fluctuated considerably since 1993, must
also be resolved on the same basis. In other words, the profit
loss accruing to either party as a result of these fluctuations must
lie where it falls. In this case the loss will lie with
respondent. Had the Zimbabwe dollar firmed, rather than weakened,
against the pound, the loss would have had to lie with the
respondent therefore is obliged to pay to the appellant the value of
£1 124.13 in Zimbabwean currency, exclusive of interest,
at the exchange rate prevailing at the time he effects such payment.
is not in dispute that from the time the appellant paid the
educational fees for the respondents son, through to the time
parties agreed that the respondent would give the appellant a tractor
in repayment of such fees and thereafter, the question
was never discussed between them.
The first reference made by the
appellant to this issue would appear to have been in a letter
addressed to the respondents legal
practitioners dated November
15, 1993. It should be recalled that the last payment by the
appellant in respect of the university
fees had been made on
29 October 1993 (£41.00). The other two payments had been
made on 17 August 1993 (£1 300.00)
and 20 October
1993 (£4 149). The letter reads as follows:
FROM B B GARAMUKANWA TO JV ITAYI FARMING ENTERPRISES
LOT 1 OF BENESYDE
covering letter serves to give notice that should Mr Garamukanwa
fail to sign the document concerning the loan he has received
us, which states that he is to pay interest at the rate of 33% on all
outstanding loans from us and from the commencing date
of such loans,
then he must immediately repay all loaned money.
misleading title, it is not in dispute that the content of the letter
relates to the university fees paid by the appellant
on behalf of the
respondent. The letter reinforces the appellants assertion that
the money had been paid and was to be repaid
by the respondent, as a
loan advanced to him. It also supports her evidence that she had
unsuccessfully tried to get the respondent
to commit to writing his
acknowledgement of the debt that he owed to the appellant.
summons the appellant claimed interest on the amount owed, from the
date of the letter cited above, i.e. 15 November
contention is that that letter had the effect of placing the
respondent in mora.
The learned trial judge, relying on the test set out in the
headnote to the judgment in Brightside
Enterprises (Private) Limited v Zimnat Insurance Company
ruled that the
appellants letter of 15 November 1993 did not meet the
relevant criteria for placing the respondent in
mora. The headnote
demand must be unequivocal or unambiguous. It must specify a date
on which payment must be made or performance given and clearly
indicate that the plaintiff requires to be paid or receive
performance by that date.
trial judge found the letter of 15 November 1993 to be
ambivalent and not to have the effect of placing the
with the learned trial judges finding. A closer look at the
the appellant prepared and sent to the respondent, for his signature,
a document purporting to be an acknowledgement of debt;
the document stated that he was to pay interest on all outstanding
loans from her, of 33%;
such interest was to be reckoned from the commencement date of the
the respondent had not, as of the date the letter was written, signed
the document in question.
therefore, demanded in the same letter that the respondent either
sign the document or immediately repay all
the money owed.
It is clear
from the above analysis of the contents of the letter that its import
was to demand that the respondent sign the document
or else pay all
loaned money immediately. It does not say that the loaned
money was to be repaid with interest, nor,
interest rate would apply. The reference to 33%, made by way of
hinting at what the document required of the
respondent in terms of
interest, is not a categorical statement or demand for payment of
that interest. While it is evident that
the demand encapsulated in
the letter was for immediate payment of the money loaned, i.e.
the capital, it cannot be said that
the same applied in relation to
the interest or any other amount.
insofar as it is said to have been a demand for the payment of
interest, therefore does not, in my view, satisfy the
out in the headnote cited above, which was relied upon by the learned
correctly rejected the letter of 15 November 1993 as containing
a proper demand for interest from that date, the learned
was satisfied that the letter of demand to the respondent dated
25 March 1995 constituted a proper demand. Although
constituting part of the record before this Court, it is not in
dispute that such letter demanded payment of interest with effect
from 7 April 1995. Hence the order of the trial court that
interest be paid on the amount determined by it as being the Zimbabwe
dollar equivalent of the amount advanced (i.e. Z$66 000) from
7 April to 14 August 1995. Thereafter interest was
paid on the balance left after the set-off, from 15 August 1995
to the date of payment.
I agree with
the trial judges calculation of the dates from and up to which
interest on the capital amount and balance after
the set-off is to be
have already determined that up to the date of the set-off, which was
14 August 1995, the respondent still owed the appellant
amount paid by her as university fees, i.e. £5 490. This
amount, for lack of a proper demand, was owed without interest
7 April 1995. This state of affairs continued until the
capital amount owed was reduced by the set-off with effect from
14 August 1995 to £1 124.13. What therefore is to be
interest rate applying to £5 490 from 7 April 1995 to
14 August 1995; and
interest rate applying to £1 124.13 from 15 August 1995 to
the date of payment.
amounts, together, in Zimbabwe dollar terms, constitute the correct
amount of interest owed to the appellant.
appellant claims interest on the pound sterling amounts owed at the
rate of 8% per annum, which is the rate charged by the Supreme
of Adjudicature in England. The learned trial judge rejected this
rate and determined that the amount owed was to be paid
dollars with interest calculated at the rate applicable in Zimbabwe.
She correctly observed, on the basis of Mawere
that while it was common cause that the money of account was pound
sterling, the court had to determine the money of payment.
Mawere v Mukuna
is important to draw this distinction (between money of account and
money of payment) for, if the money of payment is the same
money of account, then, in my view, the rate at which interest should
be calculated is dependent on the money of account.
But if the
money of payment is different from the money of account, and unless a
specific rate of interest is agreed upon, the
rate of interest to be
used should be the legal rate applying to the money of payment.
Such an interest rate would be based on
the assumption that by
agreeing to a different currency for the money of payment the parties
by implication agreed that the rate
of interest applicable to the
money of payment would apply.
casu, I have
determined that the parties understanding was that the money of
payment would be Zimbabwe dollars. It is evident that
did not agree on any specific rate of interest.
these circumstances, I see no reason to depart from CHINHENGO Js
reasoning (above) concerning the rate at which interest
is to be
calculated. It has to be the rate prescribed in Zimbabwe. (See
also Industrial Equity
v Walker 1996 (1) ZLR
269 (H) and AMI
Zimbabwe (Private) Limited v Casalee Holdings (Successors) (Private)
Limited 1997 (2) ZLR
current prescribed rate of interest in Zimbabwe is 25% per annum.
This is by virtue of Statutory Instrument 273/93, which became
operational from 10 September 1993. This would be the
appropriate rate to apply in
casu, where, as has
been determined, proper demand for interest was made with effect from
7 April 1995.
with my earlier determination as to the appropriate rate of exchange
to apply in converting the amount owed to Zimbabwe
respondent therefore has to pay to the appellant
equivalent in Zimbabwe dollars of £1 124.13 at the exchange
rate applicable at the time of payment, plus interest on
at the prescribed rate of 25% per annum from 15 August 1995 to
the date of payment; and
on the Zimbabwe dollar equivalent of £5 490 at the prescribed
rate of 25% per annum, from 7 April 1995 to
14 August 1995.
to be no dispute that the exchange rate at that time was £1 : Z$10.
written submissions for the appellant at the close of the case in the
court a quo,
a request was made on behalf of the appellant that the respondent
should pay the costs of suit in the High Court on a legal
and client scale. Before this Court the appellant
prays that the respondent pays the costs of this appeal on the
In her judgment, the learned trial judge did not
address the request for costs on the higher scale but entered
judgment in favour
of the appellant with costs on the ordinary scale.
is submitted in this Court that the argument for an award of legal
practitioner and client costs is so strong that the learned
judge either did not apply her mind to the matter or misdirected
herself. This misdirection, it is further submitted, would
the learned trial judge did not think that the conduct of the
respondent was reprehensible.
Whether or not
the learned trial judge was persuaded to order punitive costs, I
agree that the reasons for her decision on that point
for the appellant, lists, among others, the following actions taken
by the respondent, which he submits are indicative of his deplorable
behaviour and an attempt to do everything in his power to
wriggle out of his responsibility to effect payment; viz,
that the respondent
avoided committing himself in writing, to the terms under which
repayment was to be made;
raised the defence, in his first plea, that the loan in question was
only repayable on completion of his sons education;
to repay the loan after his sons education was completed, only to
raise for the first time in 1998, four years after
the event, the
defence of a counter-claim against the appellant;
before the trial in the court a quo,
sought to withdraw the admission that there was a loan and to contend
that the money which was paid to the university constituted
for a tractor which he had sold to the appellant;
the ridiculous assertion that in accepting a set-off, the
appellant had waived payment of the balance of monies owed
that since the appellant indicated she was no longer interested in
the tractor, he could keep the tractor and not pay
back the fees in
to rely on the fact that repayment of the loan could not be enforced
because of a contravention of the Exchange Control
It is further
contended for the appellant that all these defences were either
dishonest or without merit.
cited other examples of what he termed the respondents ineptitude
or unreasonable behaviour. These examples, however, relate
other transaction between the parties, that is, the sale of part of
the respondents farm to the appellants company and
dispute at hand. To the extent that these examples are meant to
reinforce the appellants claim for costs on the higher
the present case, I shall not take them into account. The proper
time for them to be taken into account is in the context
litigation said to be right now pending between the parties, and in
that respect, in the High Court.
contends further that the gap between legal practitioner and client
costs and party and party costs is considerable, meaning that
who is obliged to take a defendant to court, in this case the
appellant, would be considerably out of pocket even if she
a result of the respondents unjustified failure to effect payment,
at the latest by August 1994, the appellant, it
is contended, had
been forced to institute action against him.
respondent opposes the claim for costs on the higher scale but does
not address all of the points raised by the appellant in
such a claim. It is submitted for the respondent that the appellant
has not established that the case was so exceptional
that such costs
It is contended in this respect that the appellant persisted with
the claim of £5 490 even after a set-off had been agreed
and that up to the last minute she had insisted that the payment
should be in pound sterling as at the date of payment, and lastly
that against the sum of evidence she had insisted that interest
should be reckoned from the date when the amount was paid in
United Kingdom. As all these points were arguable, it is
further contended, it would be prejudicial if the courts penalised
litigants for taking such points.
is correct that costs on a higher scale can only be awarded in
exceptional cases. Lack of bona
fides on the part of
the party against whom such costs are sought may justify an award of
costs on the higher scale. See Davidson
v Standard Finance Ltd supra
where the following passage is cited with approval:
of a bona fides
in conducting litigation may constitute a ground for awarding costs
on an attorney and client scale.
appellant is in effect alleging a lack of bona
fides on the part of
do not find this allegation to be without merit.
the learned judge in the court a quo
correctly found, the respondent was not being truthful when he
asserted that the £5 490 paid on his behalf by the appellant
constituted the purchase price of the tractor. Given the evidence
before the court, the probabilities are very strong that the
agreement concerning the tractor was reached after the money had been
paid, and following the respondents refusal to commit his
obligation to repay this money to writing.
refusal, itself an indication of his lack of bona
fides in the light of
the appellants obvious act of kindness towards him, left the way
open for the respondent to come up with various
defences to the
action. A closer look at the defences shows they were advanced with
only one purpose in mind to avoid making
any payment at all to
albeit that plea was withdrawn, the respondents immediate response
to the summons was to admit the loan but give the defence
that it was
only to be repaid at the completion of his sons studies.
withdrawn this defence, the respondent came up with the discredited
one that the £5 490 was the purchase price of a tractor.
his admission, he never showed the appellant this tractor, but
instead did nothing to disabuse the appellant of the misconception
that she laboured under, that the tractor was one of the two that she
saw at his farm, which were in a bad state of repair. Also
own admission, the respondent used the tractor that he had meant to
give to the appellant throughout the period of the dispute
and in the
end sold it and kept the proceeds. When the appellant communicated
that she was not interested in either of the two
tractors she had
seen, the respondent did not, as one would have expected him to do
had he been honest and genuine in his dealings
with her, correct the
misconception she suffered under, nor inform her about the existence
of the other tractor presumably in
good condition that he
said he meant to give to her.
defence that the respondent proffered, that the transaction
contravened the Exchange Control Act, was another attempt to
the payment in question.
if to make sure no stone was left unturned in his efforts to avoid
having to pay, the respondent, much later in the proceedings,
with a counter-claim relating to storage and accommodation fees,
respectively, for the appellants goods and for the appellant
her relatives. The quantum of the counter-claim was calculated to
exceed the balance that the respondent still owed the appellant.
The court a quo
found that the respondent failed to prove any agreement between the
parties concerning the storage and accommodation fees and, in
view, correctly dismissed the counter-claim.
did not give up. After the set-off was agreed upon, he came up with
the defence, correctly found by the trial court
to have no legal
basis, that by agreeing to the set-off the appellant had compromised
her entire claim and was therefore not owed
anything by him. It is
not in dispute that through the set-off only a part of the amount
owed to the appellant was applied towards
repayment of her companys
debt to the respondent.
together, all these efforts by the respondent paint the picture of a
calculated and sustained campaign to avoid repaying a loan
advanced, in good faith and with good intentions, by the appellant to
and on behalf of the respondent. It is not disputed
such payment the respondents son would have been expelled from the
university and deported to Zimbabwe. While it
is acceptable for a
litigant, as contended for the respondent, to argue points in his
defence, a line must be drawn between this
and a deliberate attempt
to abuse the court process in an endeavour to evade ones legal
obligations. It is abundantly clear
that from the time he was
requested, and refused, to reduce this obligation to writing (if not
before), right up to the time of this
appeal, the respondent never
intended to repay the loan in question. This was despite the fact
that he admitted he had an obligation
to repay it. Because of his
conduct, the appellant was undoubtedly put through unnecessary stress
and the high cost of this litigation.
respondent, in any case, has failed to disprove this lack of bona
fides on his part.
Contrary to what was contended for him, the appellant was, in the
event, within her rights to claim payment of the
amount owed to her,
in Zimbabwe currency converted from pound sterling at the exchange
rate prevailing at the time of payment.
Nor did she persist with
her original claim of £5 490, having conceded the set-off and
reduced her claim accordingly. The
appellants claim for interest
has turned out to be justified, albeit not from the intended date.
The respondents attitude
was to deny any obligation to pay
interest on the amount owed, even though proper demand for it was
made as long ago as 1995, and
even though he himself demanded
interest from the appellant in relation to what she owed him.
effect of all this is to remove any doubt in my mind as to the
respondents lack of bona
fides in his entire
relationship with the appellant, and in his dealings with the courts
of law that have considered this dispute.
I am satisfied
that the respondents conduct in this whole affair calls for an
award against him of costs on the higher scale.
accordingly ordered as follows
appeal is allowed with costs.
The order of the court a quo
is set aside and is substituted with the following
is entered against the respondent in favour of the appellant for the
equivalent in Zimbabwe dollars of £1 124.13, calculated at the
exchange rate applicable at the time of payment, with
that amount at the prescribed rate of 25% per annum with effect from
15 August 1995 to the date of payment; and
on the Zimbabwe dollar equivalent of £5 490, calculated at the
exchange rate of £1 : Z$10, at the prescribed rate
of 25% per annum,
with effect from 7 April 1995 to 14 August 1995.
respondent will pay the costs of this action on a legal practitioner
and client scale.
CJ: I agree.
appellant's legal practitioners
Co, respondent's legal