The Sunday Mail
Tichawana Nyahuma Legal Matters
It is one thing to be a holder of a court judgment in your favour and totally another to be able to enforce it and enjoy the benefit flowing from it.
In other countries, a person who is owed money or a service does not just hit the debtor with a summons without first conducting a due diligence exercise to ascertain the capacity of the debtor to honour their obligations.
What will be the point of dragging someone to court who clearly has no means by which to settle the amount in question or do the thing demanded?
In Zimbabwe, there are far too many cases where, having spent time and money wrestling with the debtor in court, the creditor finds himself holding onto a judgment which he is unable to enforce simply because the debtor is bankrupt.
In this discussion, I wish to cast light on the procedure by which court judgments/orders are enforced in our courts.
In the superior courts (the High, Supreme and Constitutional courts), judgments obtained there are enforced by the Sheriff of the High Court. Judgments handed down by Magistrates’ Courts are enforced by the Messenger of Court.
“Judgments” are those decisions/orders of the courts arising from civil disputes.
At law, both the Sheriff of the High Court and the Messenger of Court have no power/authority to enforce decisions emanating from criminal courts. Criminal court decisions are enforced by the Zimbabwe Prisons and Correctional Services in cases where the convicted person would have been sentenced to imprisonment.
There are essentially two types of judgments that a civil court can deliver.
First, there are judgments for the payment of a sum of money. This is pretty straight forward. Then there are judgments ordering/directing a person or corporate body to do or abstain from doing something.
For example, where a tenant refuses to vacate rented premises despite the presence of a court order directing him to remove from the property, the Messenger or the Sheriff can physically evict the errant tenant.
However, there are situations where a person is ordered to deliver something or perform a service but refuses to do so.
Depending on the circumstances, the Messenger or the Sheriff may not be in a position to do anything about it. Furthermore, the question of attachment of property does not arise.
What happens is that the holder of the judgment has to approach the court again for an order for the imprisonment of the defaulting party for contempt of court, technically called civil imprisonment.
That procedure is only intended to jolt the person that is in contempt of court to comply with the court order in question.
As soon as he complies, he is immediately set free despite the fact that he would not, as of that date, not as yet served the full term of imprisonment ordered by the court.
It is much like what happens in maintenance cases where the person failing to pay maintenance may be imprisoned for up to 12 months but is entitled to his liberty as soon as he pays up despite the fact that he would not have served the entire prison term.
If the debtor should serve the full term and still not having complied with the court order, it does not mean that the matter ends there. He will be liable for further imprisonment unless and until he complies.
With respect to judgments obtained for payment of a sum of money, enforcement is by way of a writ of execution, which is essentially an instruction to the Sheriff or the Messenger of Court directing him to find, attach and remove the debtor’s moveable assets for the purposes of eventually selling the property via a public auction.
The proceeds realised will then be paid to the creditor in satisfaction of the debt. If need be, the debtor’s immovable property may also be attached and sold for the same purpose.
It, however, frequently occurs that the person against whom a court judgment would have been obtained, will not have enough assets to satisfy the claim. In such cases, the Sheriff or Messenger of Court as the case may be, will write a report to the holder of the judgment explaining that he failed to identify any assets of value belonging to that debtor that are sufficient to realise the amount in question.
In other words, the debtor, will be a bankrupt person.
That will effectively mark the end of the road for the creditor unless he applies for the sequestration of the debtor’s estate. Even then, no joy as such will follow as sequestration is simply a declaration by a court of law that a certain person is bankrupt.
Such a declaration can, however, have dire consequences for the concerned individual such as being unable to open a bank account, unable to be a Member of Parliament, not able to pursue vocations such as practising law, accounting, and so on.
The circumstances of a person who is willing but unable or failing to settle a debt as demanded by a court order must be distinguished from those of a person who is able but refusing to abide by the terms of a court order requiring him to settle. The first mentioned is what I have already discussed above.
The second refers to a person who is able but refuses to settle. Such a person may be the subject of civil imprisonment proceedings because he will clearly be in contempt of court. If found liable, he will be jailed for such a period as may be determined by the court or until the day he pays up if he should do so before the time period imposed by the court has not yet lapsed.
As I have already said, civil imprisonment is only intended to induce or cause a debtor who has capacity to pay what he owes. It is not calculated to punish him.
A person who is liable for civil imprisonment can only be thrown behind bars upon the creditor paying to the prison authorities the costs of that prisoner’s upkeep while in jail. The costs are not for the State as what occurs upon the incarceration of a criminal.
However, the route to civil imprisonment is not open to a creditor in a case where the debtor is willing but failing to settle or to perform the act directed by an order of court.
This is so because Section 49(2) of the Constitution directs that: “No person may be imprisoned merely on the ground of inability to fulfil a contractual obligation.”
With respect to debts that are due by corporate bodies such as companies, civil imprisonment is not available to the creditors owing to the principle that a company is a separate legal entity whose debts cannot be appropriated to its shareholders who own it or the directors who run it.
The options that the creditors have is to apply for judicial management or liquidation of the debtor company or just to write off the debt and forget about it.
When it comes to debts owed by the government, enforcement of judgments is not easy. It largely depends on whether government has the financial resources to settle in cases where the judgment will be sounding in money.
For as long as government pleads that it does not have the resources, the only reason for proceeding against it in court is to just hold onto the judgment until the day government declares that it now has the capacity to settle.
After all, a court judgment has a life span of 30 years. Otherwise, the judgements will remain unenforceable because in terms of the State Liabilities Act, government property is immune from attachment and execution.
However, in cases where apart from suing the relevant government department that is responsible for the debt or the damages being claimed and the law under which the suit was brought, allows for the joint suing of the responsible person personally, then is such situations, that person’s personal property may be attached in satisfaction of the debt.
Generally speaking, it is difficult to enforce a court order against the government in Zimbabwe.
Tichawana Nyahuma is a lawyer and he writes in his personal capacity. Feedback: [email protected]