The applicant (Barclays Pension Fund) was the lessor of Zimlantic (Pvt) Ltd at Delken Complex, Mount Pleasant. On 18 November 2010, the applicant instituted proceedings against Zimlantic for eviction and payment of arrear rentals, holding over damages and arrear operating costs. The applicant obtained a default judgment against Zimlantic on 23 February 2011 under case number HC 8408/01. When the applicant attempted to execute on the judgment, the Deputy Sheriff reported that Zimlantic had no movable property worth attaching. The applicant then instituted these proceedings seeking to have the respondent (Pius Matambanadzo), who was a director of Zimlantic, declared personally liable for Zimlantic's debts totaling USD 14,684.00 for outstanding operating costs, arrear rentals and holding over damages.
The application was dismissed with costs.
A creditor who has obtained judgment against a principal debtor cannot seek to enforce liability against a surety by way of application without serving summons commencing action on the surety. The surety has a right of audience and the audi alterem partem rule requires that the surety be afforded an opportunity to defend himself through proper legal process. The creditor must institute an action against the surety, not merely bring an application based on the judgment obtained against the principal debtor. Similarly, an application to hold a director personally liable under section 318 of the Companies Act requires compliance with procedural requirements and cannot be based on broad, generalized allegations without affording the director an opportunity to defend himself.
The court observed that the applicant could have instituted an action against the respondent as surety and co-principal debtor for payment of the amount specified in the judgment granted against Zimlantic (Pvt) Ltd. This suggests the proper procedural route the applicant should have followed. The court also noted that it was not dealing with a proper application in terms of section 318(1) of the Companies Act, implying that had the applicant followed the correct procedure under that section, the outcome might have been different.
This case is significant in Zimbabwean law (which shares similar common law principles with South African law) for establishing that: (1) a creditor cannot bypass proper legal procedure by seeking to enforce liability against a surety through an application without serving summons commencing action, even where judgment has been obtained against the principal debtor; (2) the audi alterem partem rule must be observed in proceedings seeking to hold directors personally liable for company debts; and (3) an application under section 318 of the Companies Act requires proper pleadings and procedure, not merely broad generalized allegations. The case reinforces the importance of procedural fairness and the right to be heard in civil proceedings.