FORMER cabinet minister Supa Mandiwanzira has lost in a case in which he was seeking to attach some property belonging to a business partner following a fallout on an agreement.
High Court judge, Christopher Banda ruled in favour of Florence Erinah Ziumbe who was seeking an order staying execution of a default judgement granted against her pending an application for recession of the judgement in which Mandiwanzira was allowed to attach her property over a US$317 166 33 debt.
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Cited as respondents in Ziumbe’s application was Westlakes International Finance LTD and Supa Mandiwanzira, The Sheriff and Tarcon (Pvt) LTD.
Mandiwanzira had issued summons against Ziumbe claiming US$317 166 33, being money outstanding from three separate loan agreements entered into between him and Tarcon (Pvt) LTD.
Mandiwanzira’s case is that the applicant signed a deed of surety-ship in terms of which she bound themselves as sureties and co-principal debtors for the faithful performance by Tarcon of all its obligations arising from the loan agreements.
Later Tarcon failed to repay the monies loaned.
The parties entered into a deed of settlement for payment of US$317 166 33.
In terms of clause one of the deed of settlement, Ziumbe was to facilitate payment of the full debt by the principal debtor, Tarcon.
If the debt was not paid by a specified date, Mandiwanzira would be entitled to enrol the matter on the unopposed motion roll and obtain judgement for payment of the outstanding debt against the applicants without notice to them.
Court papers show that Mandiwanzira was only paid $17 166.
Subsequent to that, Mandiwanzira rolled the matter on the unopposed roll resulting in judgement being granted against Ziumbe in the sum of US$297 598.
Mandiwanzira had instructed the Sherrif to recover the amount resulting in him issuing a notice to attach Ziumbe’s property as well as seizure.
Ziumbe then approached the court seeking to stay writ of execution.
He also argued that the judgement was granted in her absence and maintains that the debt was paid off prior to this.
She also refuted the debt was a foreign debt deserving to paid off in US dollars adding that she was entitled to paying in local currency.
“They relied on the case of Zambezi Gas Pvt Ltd versus NR Barber for the proposition that all debts in US currency existing before February 2019 are payable in local currency as defined by the law,” said the judge.
Mandiwanzira had argued that his company is a foreign company registered in the British Virgin lslands.
He also argued the money which was paid by Ziumbe was converted using the prevailing interbank rate and it amounted to US$19 567, leaving a balance of US$297 598 43.
The Zanu PF MP further argued Ziumbe had not discharged the judgement in full and as such, have no right.
That being the case, Dube ruled that laws regarding foreign transactions have not changed.
“What the court is aware of is that the regulations were not repealed and are still law.
“For the purposes of these proceedings, the court will take it that the law with respect to foreign transactions has not changed.
“The failure to comply with The Exchange Control Regulations is consequences that has implications on the competency of the execution. Anything done contrary to the prohibition of the law is a nullity,” said Dube.
Mandiwanzira had argued that even if the debt is payable in local currency, Ziumbe had not fully discharged her obligations in terms of the deed of settlement.
Dube said he could not consider that because he was not told what the total outstanding amount in local currency inclusive of interest and collection commission is.
“The assets attached were meant to satisfy a debt owed in US dollars. It is not prudent to order that execution proceeds when different considerations altogether come into play regarding the attachment and execution.
“In that the writ of execution needs to match a specified amount in local currency. For these reasons, I am satisfied that the applicants have established a prima face entitlement to the relief sought, even though such right may be open to some doubt,” he said.
The judge ruled that Mandiwanzira already has a favour in his hand and as such, he will still be able to recover his money even if proceedings are stopped.
He ordered that Mandiwanzira and his company be interdicted from executing the default judgement granted against applicants in the case reference no’9962/18 and to settle costs.
