Evangelista Dionisio v George Frangoulis

The applicant obtained a judgment against the respondent under HC 3985/17 for USD 56,640.00 plus interest at 16.8% from 1 May 2017, a further USD 340.00 with prescribed interest, and costs. When the applicant attempted to satisfy the judgment through attachment of the respondent's property, the Deputy Sheriff rendered a nulla bona return on 5 January 2018, being unable to locate any movable assets. The applicant then instituted proceedings for civil imprisonment of the respondent. The respondent opposed the application, claiming inability to pay under s 16 of the High Court Act [Chapter 7:06], and alternatively offered to pay USD 200.00 per month from his allowance of USD 250.00. The respondent stated he had invested the borrowed money in a failed agricultural venture. Evidence emerged that the parties had previously agreed to settle the debt by selling the respondent's interest in a flat in Avondale, but the respondent became unwilling to proceed with this sale. The respondent's father had written a letter indicating willingness to sell the flat to pay his son's debt.

• Whether the respondent had the means and capacity to pay the judgment debt
• Whether civil imprisonment was appropriate where the debtor claimed inability to pay but had previously agreed to sell property to settle the debt
• Whether the order for committal should be suspended on condition of monthly payments
• Application of s 16 of the High Court Act [Chapter 7:06] regarding inability to pay
• Application of Order 41 r 370A and r 370C of the High Court Rules, 1971 regarding civil imprisonment

1. An order for civil imprisonment was granted in favor of the plaintiff. 2. The Sheriff for Zimbabwe or his deputy was ordered to arrest the defendant for a period of 90 days in the Remand Prison until: (a) defendant has paid the judgment debt, interest and costs; or (b) 90 days from delivery to prison has elapsed; or (c) a court has varied or revoked the order. The order requires payment of: (a) USD 56,640.00; (b) interest at 16.8% per annum from 1 May 2017 to final payment; (c) USD 340.00; (d) interest at 5% from 5 May 2017 to final payment; and (e) taxed costs and costs of the application. 3. The defendant shall bear costs of suit.

In terms of Order 41 r 370A of the High Court Rules, 1971, the court may issue an order for civil imprisonment of a judgment debtor where it is satisfied that the defendant has the means and/or capacity to pay the debt but willfully neglects to do so. The onus rests upon the debtor to establish that he does not have the means or ability to pay the debt. Where parties have previously agreed to satisfy a debt by selling property in which the debtor has an interest, and the debtor later refuses to proceed with the sale, the court may infer that the debtor has the ability to pay but is unwilling to do so, justifying an order for civil imprisonment.

The court observed that with 'a little cajoling' the respondent could discharge the debt as he was able to do so but reluctant to sell his rights in the asset which the parties had indicated could be sold. The court also noted that the proposal to sell the flat appeared to be 'a ruse to avoid paying what was due' when it became clear those with joint rights were unwilling to put up the flat for sale. The court cited South African authority (Civil Practice of Supreme Court in South Africa – Herbstein and van Winsen 509 and Mansour v Sorour Bros 1912 EDL 208) regarding the onus on the debtor to establish inability to pay.

This case demonstrates the application of civil imprisonment procedures in Zimbabwe for enforcement of judgment debts. It clarifies the test for civil imprisonment under Order 41 r 370A of the High Court Rules, emphasizing that the court must be satisfied the debtor has the means and capacity to pay but willfully neglects to do so. The case illustrates that where parties have previously agreed to sell property to satisfy a debt, the court may infer ability to pay despite later claims of inability. It also clarifies that the onus rests on the debtor to establish inability to pay, and that offers of nominal monthly payments may be rejected where the court finds the debtor has assets or means available.