Anesu Akino v Johanise Kashitigu and Messenger of Court

The first respondent (plaintiff a quo) obtained a judgment debt of US$6000 against the appellant (first defendant a quo). The appellant paid RTGS$7,400,000 (equivalent to US$6000 at the time) into the second respondent's (Messenger of Court's) bank account on 15 May 2023 to discharge the debt. The appellant notified the second respondent by letter on 16 May 2023. However, the money was only paid out to the first respondent on 14 June 2023, by which time currency depreciation meant it was worth only US$1044. The first respondent sued both the appellant and the Messenger of Court for US$4,956 (the difference) plus interest and costs, alleging negligence caused the depreciation loss. The second respondent's bank account had been garnished by NASSA, but this was not communicated to the appellant until 20 June 2023 when the second respondent filed a supplementary affidavit. The court a quo found both defendants negligent and ordered them to pay jointly and severally.

• Whether the appellant was negligent in discharging his judgment debt
• Whether the court a quo erred in imputing negligence to the appellant
• Whether a cross-appeal can be filed by a co-defendant/co-respondent against whom no relief is sought
• Whether the appellant acted as a reasonable person would in the circumstances
• The quantum of loss suffered due to currency depreciation

(a) The second respondent's purported cross appeal is struck off the roll as not properly before the court. (b) The appellant's appeal is upheld. The judgment of the court a quo is set aside and substituted with: 'The plaintiff's claim against the first defendant is hereby dismissed with costs while the plaintiff's claim against the second defendant succeeds with costs.'

A judgment debtor who pays the full amount due into the Messenger of Court's designated bank account and timeously communicates such payment to the Messenger of Court has properly discharged their debt and cannot be held negligent for subsequent currency depreciation caused by the Messenger of Court's delay in disbursing the funds. Negligence is measured by the objective standard of whether a person acted as a reasonable person would in the given circumstances. A cross-appeal can only be filed against an opposing party who has filed an appeal seeking relief; it cannot be filed by a co-defendant or co-respondent against whom no relief is sought in the main appeal.

The court observed that it was irrelevant for purposes of the case whether the Messenger of Court's account was a business or trust account, or where the appellant obtained the account number, as long as the account was confirmed to belong to the Messenger of Court and payment was timeously communicated. The court also noted that this was one of those rare instances justifying appellate interference with factual findings of a lower court due to gross misdirection and irrationality (citing Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)).

This case is significant in Zimbabwean law for: (1) clarifying the proper procedure for cross-appeals - establishing that a cross-appeal can only be filed against an opposing party who has appealed, not against a co-defendant/co-respondent who seeks no relief; (2) applying the objective standard of negligence in the context of judgment debt payments and currency depreciation; (3) establishing that a debtor who properly pays a judgment debt to the Messenger of Court's account and timeously notifies same has discharged their obligations and cannot be held liable for subsequent depreciation caused by the Messenger of Court's failure to disburse; (4) affirming appellate courts' jurisdiction to interfere with factual findings where there has been a gross misdirection constituting irrationality.