IN THE HIGH COURT OF MALAWI
COMMERCIAL CASE NO. 245 OF 2015
TARSUS TECHNOLOGIES (PVT) LIMITED…. ……………………PLAINTIFF
JERE t/a INFOTECH SYSTEMS……………………..……..……..DEFENDANT
HON. RACHEL SOPHIE SIKWESE
Ng’omba; Counsel for the Plaintiff
Masumbu; Counsel for the Defendant
E. Gwedeza; Court Interpreter
On 3 November 2015 through a settlement agreement, the defendant Sunduzwayo Jere undertook to pay the plaintiff the sum of ZAR 723 389-91 being the principal debt and interest on the sum at the rate of 15 per cent per annum effective 6 December 2014 until full repayment of the debt. The defendant also undertook to pay the plaintiff costs of the action. Execution of judgment was however stayed pending the defendant’s application to pay debt by instalments.
On 17 November 2015 the defendant applied to court to be heard on an application to pay debt by instalments. He proposed that he should pay the equivalent of MK1million every month. The plaintiff opposed the application, especially the proposed amount arguing that it was not justified. The application was to be heard on 18 December 2015 but the parties were not ready and with the court’s permission adjourned the matter to 26 January 2016.
The matter was called for hearing on 26 January 2016and was continued and finalized on 16 February 2016. Counsel for the plaintiff had not applied to cross examine the defendant on his affidavit. The defendant brought this fact to the attention of the Court. However he did not have serious issues in the Court allowing the plaintiff’s counsel to cross examine the defendant. The Court granted the applicant an order to cross examine the defendant although on short notice because the order would not prejudice the defendant’s case.
It was during cross examination that it transpired that the defendant had left out some material information pertaining to his financial position in particular, information relating to his indebtedness and his creditworthiness. For instance, he did not disclose through current bank statements or accounts statements his outstanding loans with various named lending institutions. He did not discloseup to date repayment schedules through actual payments made towards servicing those loans. Further he provided vague and unsubstantiated information relating to his income and expenses, assets and liabilities.
An application to pay judgment debt by instalments is governed by Section 11 (a) (x) of the Court’s Act. This is an application where the defendant is required to be completely honest with the court on his financial standing. This is because he/she is seeking court’s sympathy that the court should take into accounthis/her indisposition to fulfill his/her legal obligations at once. It is therefore trite law, see,Leasing and Finance Co v Maltraco Ltd 2 MLR 250 (HC) that the principle of court’s sympathy shall only be exercised where there is a full factual frank and honest disclosure of the judgment-debtor means. In other words the applicant must come out clean.
This Court recently applied this principle and allowed the defendant in NBS Bank v Dzinyemba t/a U Service Station [Commercial Cause No. 35 of 2015 (HC) (unreported)] to pay debt by instalments which repayment will take several years on the basis that the defendant had made relevant information available which left the Court in no doubt that the amount proposed by the defendant was justifiable under the circumstances of her case. This was an exception to the principle that long periods of payments by instalments amount to denying the judgment creditor of the fruits of his/her judgment.In that case the plaintiff was not able to question or contradict the evidence supplied by the defendant on her allegedimpecunuity to pay off the loan at once or within a shorter period.
In the Dzinyemba case supra, the Court found on the facts that prior to the collapse of her business, the defendant was able to service her loan diligently.In the instant case, the defendant admitted that he had not shown to the Court his current and up to date statement of loan accounts to various lending institutions. Secondly, Dzinyembashowed to the Court her current payslipwhich showed how much she was earning and deducted for tax. In the instant case, the defendant admitted that he had not proved his earnings. Thirdly, Dzinyemba exhibited receipts and invoices for other expenses. In the instant case, the defendant failed to exhibit such in respect of his current liabilities.
Conclusion, Finding, Order
The defendant failed to supply the Court with a full factual frank and honest disclosure of his financial position in support of his application. The defendant without good reason, deliberately withheld relevant and his up to date financial status. The Court has no basis on which to exercise its sympathy to allow the defendant’s application to pay MK1 million per month toward servicing the judgment debt. It is dismissed with costs.
However, because the defendant willingly and voluntarily opted not to waste court’s time and fully utilized the mediation process under this court’s rules and because he showed willingness to pay off his debt, it is the Court’s finding that the defendant be allowed to pay the judgment debt by instalments. The defendant shall pay off the plaintiff’s claim as agreed in the settlement agreement within six months from this date.
Pronounced this 22nd dayMarch 2016 at High Court (Commercial Division) Blantyre.