Betty Dube and Keenlord Dube v Wackdrive Properties (Pvt) Ltd and Freddy Kapuya and Sheriff of the High Court N.O.

The applicants, a married couple, entered into a contract to purchase two residential stands from the 1st respondent (a company) for USD27,000.00. The properties had already been sold to a third party. The 2nd respondent was the alter ego of the 1st respondent company. The applicants obtained judgment under HC 2934/17 for USD27,200.00. When attempting execution, the 1st respondent had no assets. The applicants successfully applied to pierce the corporate veil (HC 2929/18) to reach the 2nd respondent. The respondents filed for rescission (HC 2936/20) and obtained a provisional order staying execution (HCBC 2135/20). The parties then entered into a deed of settlement on 26 March 2021, providing for payment in installments totaling USD27,200.00 by July 2021. The respondents withdrew their rescission application but only paid USD14,000.00 of the settlement amount, leaving USD13,200.00 outstanding. The provisional stay order remained extant. The applicants sought to register the deed of settlement as a court order.

• Whether the applicants' claim had prescribed under the Prescription Act
• Whether the deed of settlement compromised the original judgment debt
• Whether the application was brought on a new causa (cause of action)
• Whether a provisional order could remain valid after withdrawal of the underlying rescission application
• Whether the court could register a deed of settlement as an order of court for enforcement purposes
• The effect of a deed of settlement on an existing judgment debt

1. The deed of settlement dated 26 March 2021 was registered as an order of court. 2. The provisional order under HC 2136/20 was deemed lapsed and of no effect owing to withdrawal of the rescission application. 3. The applicants were authorized to enforce and execute the deed of settlement against both respondents (one paying for the other to be absolved) for recovery of sums remaining due under the main judgment (HC 2934/17) plus interest at the prescribed rate from the date of that judgment to date of full settlement. 4. The 1st and 2nd respondents were ordered to pay costs on an attorney and client scale.

The binding legal principles established are: (1) A deed of settlement entered into by parties does not automatically compromise an existing judgment debt unless the parties expressly agree to such compromise. (2) Where parties enter into a settlement agreement relating to enforcement of a judgment, the original judgment debt remains extant and enforceable unless specifically compromised. (3) A provisional stay order granted pending determination of a rescission application automatically lapses when the rescission application is withdrawn and cannot remain valid in perpetuity. (4) An application to register a deed of settlement as a court order is a procedural application for enforcement purposes and does not constitute a new cause of action that would trigger a fresh prescription period. (5) Prescription does not run while a live rule nisi (provisional order) is in place, per section 19(1)(c) of the Prescription Act. (6) Judgment debts prescribe after 30 years under section 15(a)(ii) of the Prescription Act. (7) Courts will not allow parties to benefit from their own breach or wrongdoing.

The court made important non-binding observations about the state of commercial morality in Zimbabwe: The court expressed concern about a "sad trend" where courts are "inundated with disputes emanating from business contracts that had been executed with purely deceitful intents on the part of recipients of cash." The court observed that "purchase of landed property has become a dicey enterprise" due to fraudulent practices. The court characterized the respondents' conduct as involving "all manner of ruse to avoid paying money" and noted their intentions were "purely to reap where he did not sow." The court found the respondents' arguments "mischievous" and described them as attempting "to hide behind the proverbial finger and continue to benefit from their own deceit." The court noted it was "unashamed" of the respondents to admit breach through counsel while simultaneously seeking to benefit from that breach. These observations highlight judicial frustration with dishonest commercial practices and signal the court's willingness to use available remedies to prevent parties from exploiting procedural technicalities to avoid legitimate obligations.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It demonstrates the courts' willingness to prevent parties from benefiting from their own wrongdoing, applying the maxim "nullus commodum capere potest de injuria sua propria". (2) It clarifies that a deed of settlement does not automatically compromise an underlying judgment debt unless expressly stated. (3) It establishes that a provisional stay order cannot remain valid indefinitely after the main application it relates to has been withdrawn. (4) It confirms that applications to register settlement agreements as court orders are procedural in nature and do not constitute new causes of action for prescription purposes. (5) It illustrates the court's approach to piercing the corporate veil and enforcing judgments against alter egos of companies. (6) The judgment addresses a concerning trend of fraudulent property transactions and provides guidance on enforcement mechanisms available to defrauded purchasers.