Do you have a written agreement with a debtor, but they haven’t paid you yet? What comes next? Learn more below!
The High Court regulations of 2021 stipulate that a provisional sentence is the remedy. After the summons is issued, this process enables the Plaintiff to obtain a prompt remedy if the Defendant provides a written recognition of debt (liquid document). According to the definition given in Sibanda v. Mushapaidze 2010 (1) ZLR 216 (H), “Any explicit, unambiguous, and clear written promise to pay a debt constitutes a liquid document.” Therefore, any letter that contains an acceptance of debt and is clear, unambiguous, and unequivocal can be considered an acknowledgement of debt for the purposes of the regulations on interim sentences.
In the Zimbank v. Interfin 2005 (1) 114 case, the key components of the provisional sentence procedure were captured as follows: “… the procedure for provisional sentence allows the creditor with a liquid document, to obtain payment of the debt without having to wait for the final determination of the dispute between the parties.” Although it is a quick fix, the provisional sentence is an unusual solution because it is predicated on the liquid document’s indebtedness. After determining that the defendant has no chance of winning the main case, the court will issue this swift and strong remedy on the hearing date that is supported on the face of the summons in suitable instances.
In order to successfully pursue a claim for a provisional sentence, the plaintiff must demonstrate that; he or she is a creditor with a properly signed and witnessed liquid document; there is a strong indication of indebtedness in favor of the plaintiff; the plaintiff is entitled to a summarily paid amount without waiting for the main matter dispute to be resolved; the defendant does not dispute the presumption of indebtedness, which is supported by the liquid document; the defendant has no chance of success in the main matter; and the defense is less likely to be dismissed.
The court must hear the case and not add it to the roll of opposed cases if a notice of opposition has been filed with summons for a provisional sentence. This is also due to the fact that some litigants consistently develop tedious defenses, even in cases that are obvious and contain an acceptance of liability on a liquid document. According to the rules, the plaintiff may submit a replying affidavit in the event that the summons for a provisional sentence is contested. If the defendant contests the legitimacy of the signature on the debt acknowledgement or the legitimacy of the agent or signatory, the court may request evidence.
A provisional sentence can be granted if the debt acknowledgement on its face satisfies all the requirements of a liquid document without the need to determine the amount that forms the basis of the provisional sentence; otherwise, the provisional sentence will be denied if the odds favor the defendant. The defendant would still have the chance to fight the case if a provisional sentence was given because the order is just temporary and pending final confirmation. In the event that it is rejected, the filed documents become pleadings, and the case is handled as an opposed matter, subject to all the procedures for opposing matter prosecution and hearing.