Kwenda v Engwane Investments (223 of 2024) [2024] ZWHHC 223 (4 June 2024)

1 HH 223-24 HC 6016/21 FRANK KWENDA versus ENGWANE INVESTMENTS HIGH COURT ZIMBABWE CHITAPI J HARARE, 4 June, 2024 Opposed application T G Chigugudze, N Karimatsanga & TL Mapuranga, for the applicant G Majrija, for 1st respondent No appearance for 2nd respondent CHITAPI J: This is an application for stay of execution of judgment granted by this court per MUZOFA J in case No HC 5572/20 on 22 September 2021in favour of the first respondent against the applicant for payment of the “equivalent in Zimbabwe dollars of US $ 15440.00 at the prevailing interbank on the date of transaction.” In addition the first respondent was ordered to pay interest on the said amount of US $ 15 440.00 at the rate of 5% per annum calculated from 25 July, 2019 to the date of full payment together with costs on the scale of legal practitioner and client scale. The application was first determined by MUCHAWA J as an urgent application on 18 November, 2021. The urgent application was motivated by an attachment of goods in execution made by the second respondent pursuant to the judgment of MUZOFA J foresaid. The respondent had caused a writ of execution to be issued on 20 October 2021. In her determination of the urgent application, MUCHAWA J granted an interim order in terms of which the second respondent was ordered to stay the execution of the judgement as per the writ of execution which had been issued. Further the second respondent was ordered not to remove the attached goods and to return to the applicant any goods which he/ she had removed. The first respondent was also ordered to pay all costs of execution to the date of the HH 223-24 HC 6016/21 grant of the interim order including removal costs, storage costs, auctioneer’s costs and “related costs”. The interim relief was granted pending the return date. Following on the granting of the interim relief the matter was progressed and enrolled on the opposed roll and set down on 12 July, 2022. On 12 July, 2022 following exchanges between the court and Mr Chagugududze for the applicant and Mr Majirija for the first respondent, I issued the following order: “1. Hearing postponed to 20 July, 2022 at 10.00am. 2. Parties to agree on amounts paid by the applicant and what would be due in terms of the judgment of the court dated 22 September, 2021 and that any payments made be calculated or converted at the interbank rate obtaining on the date of payment”. The issue for determination in the application is narrow. It is for the court determine whether or not the applicant satisfied the judgment and whether or not there is a legal basis for the issue and execution of the writ of execution which was acted upon by the second respondent. The applicant couched the terms of the final which he seeks as follows: “1. Paragraphs 1&2 of the Order of the court under case number HC 5572/20 granted on the 22 of September, 2021 were fully complied with and satisfied by the applicant and they are no longer executable upon. 2. Any attachment on the above referenced paragraphs is declined a nullity and of no force or effect. 3. The first respondent shall pay costs of this application on a legal practitioner client scale.” The background to the dispute between the applicant and the first respondent was set out in detail by MUCHAWA J in the judgment HH 649/21 in which the learned judge issued the order for stay of execution. Very briefly, the facts are that consequent on the judgment of MUZOFA J which was in fact a consent judgement, the applicant in a bid to satisfy that judgment paid to the credit of the respondent, the sums respectively of ZWL $ 137 358.37 $ ZWL 153.816.00 on 8 October, 2021. The amount of ZWL $ 137 358.87 was calculated as the equivalent of the judgment amount of $ USD 15 440.00 and the amount of ZWL $ 153 HH 223-24 HC 6016/21 816.00 was presented as accrued interest. The respondent refused to acknowledge that the two amounts paid fully discharged the judgment in question both as to capital and interest. When I directed the parties to establish the interbank rate on the date of payments made by the applicant, the parties set out their disagreed computations as per letter dated 11 January, 2022. The date of the letter is clearly an error date because the court only heard the matter and issued a directive for calculations to done 12 July 2022. Nothing turns on the wrongly captured date. The parties however agreed to disagree on the figures. The parts were agreed that as at 7 October, 2021 the interbank rate was 88.55320. The applicant set out his computations as follows: “ 1. Payment of principal amount of USD 15 440.00 Rate on 25 July, 2019 8.9963. Amount due as started in the order USD 15 44.00. Amount due in RTGS issuing rate of 25 July, 2019 ZWL 137358.90. Amount paid in RTGS using rate of 25 July, 2019 ZWL 137 358.90 amount outstanding. Interest Calculated on the sum of USD $ 15 4400 00 from 25 July 2019 to the 7th of October 2021. --- - Rate used 7 October 2021 88.5532 - Amount due as interest USD $ 1737.00 Amount paid in RTG using rate of 7 October, 2021 ZWL 153 817.00. - Amount outstanding a interest nil. Therefore, both the principal amount of USD 15440 and interest thereon were paid in full on the 7 October 2021.” The first respondents computations were stated as follows: 1. Payment of principal amount of USD $ 15 440.00 Rate on 7 October, 2021 88.5532 Amount due as stated in the order USD 15 440.00 Amount paid in RTGS on 7 October 2021 ZWL 137 358.90 Amount paid if converted to use) USD 1551.16 Amount outstanding USD 13 888.84 2. Interest Calculated on the sum of USD $ 15 440.00 from 25 July,2019 to 7 October, 2021. Rate used of 7 October, 2021 88.5532 Amount due as interest up to 7 October 2021 USD 1737.00 Amount paid in RTGS using rate of 7 October, 2021 ZWL $ 153 817.00 interest up to 7 October,2021 paid in full. HH 223-24 HC 6016/21 Amount outstanding as interest is on the sum of USD$13 888.84 calculated from the 7th of October, 2021 to the date of payment in full. 3. Therefore, the principal amount of USD$ 13 888.84 is still outstanding payable at the prevailing rate on the date of such payment together with interest thereon calculated from the 7th October, 2021 to the date of payment in full.” The applicants and first respondents computations were polarized. The question is, is either of them correct in the computations made. It is necessary in this regard for the court to interpret its judgment order. It is competent for a court to interpret its judgment in doing so, it ascribes the will the ordinary English and grammatical meaning which it conveys in order to achieve the objective of the court when it made the order. In casu, in terms of the consent order and specifically paragraph 1 it reads as follows: 1. “The respondent be and is hereby ordered to pay the equivalent in Zimbabwe dollars of US$15 440.00 at the prevailing interbank rate on the day of transacting.” The ordinary meaning of the word transacting is to be involved in a conduct or to carry out an act usually a business one. According to the Cambridge dictionary accessed on 24 May, 2024 on https://dictionary.cambridge.org it defines a transaction as: “an occasion when someone buys or sells something or when money is exchanged or the activity of buying or selling; a business transaction.” In the Merriam Webster dictionary accessed on 24 May, 2024 https://www.merriam.webster.com the word transaction is defined as: “something transacted, especially: an exchange or transfer of goods, services or funds.” The position in the matter before the court was simple. On the date of judgment, the court endorsed as its judgment a consent position that the applicant owed the respondent USD$15 440.00. If the applicant had in fact paid that amount on that date, he would have been required to simply multiply that amount by the interbank rate obtaining on 25 July, 2021 and paid the ZWL$ equivalent. He would have extinguished his debt. On 25 July, 2021 and on every subsequent day that the debt was nor paid the applicant was owing the respondent USD$15 440.00. The amount would only be extinguished upon its payment. In other words, on the date that the applicant decides to make a payment, if asked how much he owes the respondent, the answer would be USD$15 440.00. If say the applicant makes part payment of say 2000 USD, the applicant would say that of the principal amount of USD $ 15 440.00 he has reduced it by USD $ 2000 and the balance is USD $ 13440.00. The USD 2000 HH 223-24 HC 6016/21 would then be converted to the its $ ZWL equivalent by multiplying it by the inter bank rate of the date of its payment. The order did not provide that payment and calculations would be retrospective. The court gave a judgment sounding in foreign currency and ordered that the payment of the USD denominated amount be paid in its equivalent in ZWL on the date of transacting which would be the date that a payment is made. The applicant contended that the order should be construed to mean that the date of transacting mentioned in paragraph 1 was the date of consummating the transaction which led to the applicant owing the USD$15 440.00. The difficulty with this submission is that it is made oblivious to the fact that the order disposed of court application reference HC 5572/20. The whole dispute in HC 5572/20 which record has been considered herein arose from the applicants failure to pay the amount USD$15 440.00 to the first respondent due by 20 May, 2019 in relation to a joint venture agreement. The admitted joint venture agreement provided that failing payment after due demand, the whole amount outstanding would become due and payable. The amount was not paid and it remained due and payable. The amount was due and payable on the date of judgment. The obligation to pay remained until payment was affected. The order did not make any reference to the dates of any performances or defaults or to the cancelled joint venture agreement. In relation to payment of interest which is not an issue as it is agreed to, the debt of USD$15 440.00 was saddled with interest at 5% per annum from 25 July, 2019. The choice of 25 July, 2019 as the date when interest would begin to run does not appear from a consideration of the case records HC 5572/20 and the current application. However, this is noted as an observation only because the parties have no qualms with this date nor the interest calculations. Costs were agreed and are not an issue in this application. The applicant submitted through counsel and heads of argument that the order referred to a date in the past and not in the future and that it was the same as per paragraph 2 on interest. Counsel submitted that the date of transacting referred to in the order was not the date of execution or payment. It was submitted that payment is not always a transaction. The applicant’s counsel then referred to the definition of the word transaction in the Black’s Law Dictionary, 9th ed where it is stated: “transaction, n (17c) 1. The act or an instance of conducting business or other dealings; esp formation, performance or discharge of a contract. 2. Something performed or carried out; a business agreement or exchange. 3. Any activity involving two or more persons. 4. Civil law, an agreement that is intended by the parties to prevent or end a dispute and in which they reciprocal concessious. La. Gv. Code art.3071. transactional ….” the make HH 223-24 HC 6016/21 Counsel argued that there was nothing in the definition which would extend to include payment via execution. This argument is difficult to appreciate. The definition itself is clear that transacting includes “something performed or carried out.” In this sense paragraph 1 of the judgment would refer to the date that the payment of the money ordered to be paid is in fact made. Counsel for the applicant referred to an illuminating judgment of the South Africa Appellate Division, VIZ, Firestone South Africa (Pty) Ltd v Genticuro AG 1977(4) SA 298 AD at 304D – H wherein it is stated that: or “First, some general observations about the relevant rules of interpreting a court’s judgment order. The basic principles applicable to construing documents apply to the construction of a court’s judgment or order. The court’s intention is to be ascertained primarily from the of the judgment or order as construed according to the usual, well-known rules. see language Garlick v Smart and Anor 1928 AD 82 at 87: West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 at p188. Thus in the case of a document the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify or supplement it. Indeed, it was common cause that in such a case not even the court that gave the judgment or order can be asked to state what its subjective intention was in giving it (cf Postmasburg Motors (Edms) Bpk v Peensen Andere 1970(2) SA 35(NC) at p39 F. H. Of coURSE different considerations apply when not the construction, but the correction of a judgment or order is sought by way of appeal against it or otherwise_ _ _” If the ordinary rules of interpretation are applied it is clear therefore that there were three components to the judgment in issue, namely, the amount to be paid to the respondent by the plaintiff, and interest and costs. The court decreed that interest be calculated from a specified date being 25 July, 2019 and that the principal amount be paid in ZWL at the prevailing interbank rate on the date of transacting which can only mean upon payment of amount. As l already indicated it would be absurd to interpret the order as intended to mean that the respondent loses out on what was due to it by being required when opening its hands to receive its USD$15 440.00 to be required to go back to the time that it should have been paid and use rates of exchange obtaining on those days or dates. The construction submitted by the respondent’s counsel that the amount due on the judgment is to be paid at the rate obtaining on the date of payment is the correct construction. On the date of judgment, the respondent was owing the USD$15 440.00. In paying it back as per the judgment he simply had to pay its equivalent in ZWL$ at the rate prevailing when effecting payment. The applicant did not do that. It was therefore proper for the respondent to seek enforcement through execution by the second respondent. HH 223-24 HC 6016/21 In the court’s view this application has no merit and appears to be a mischievous application filed to avoid payment clearly due in terms of the judgment of this court. The applicant defended this application to get an advantage which was not due. The defence proferred lacked bona fides. The submission that the applicant needed to seek a correction of the judgement has no merit. The order did not need correction as it is clear. The respondent did not ask for costs in the opposing affidavit but did so in the heads of argument where costs are sought on the legal practitioner and client scale. For a court to grant such scale of costs, such costs must have been specially pleaded and facts established to justify them. This was not done. Costs if the court grants them are to be granted on the rules of court scale. It shall be so in casu. This application having no merit, the following order is made: IT IS ORDERED THAT 1. The application be and is hereby dismissed. 2. The interim order granted by MUCHAWA J dated 18 November, 2021 is discharged. 3. The applicant shall pay the costs of the application. CHITAPI J:………………………….. Mangeyi Law Chambers, applicant’s legal practitioners B. Matanga, first respondent’s legal practitioners