Fynatex Distributors (Pvt) Ltd v Tasmine Enterprises (Pvt) Ltd and Ye You-Jing

The applicant leased business premises to the first respondent (Tasmine Enterprises). The first respondent failed to pay rentals, accumulating rent arrears of $82,740.00. On 6 November 2014, the second respondent (Ye You-Jing), a director of the first respondent, signed an acknowledgment of debt stating "I the undersigned YE YOU-JING... representing TASMINE ENTERPRISES... do hereby acknowledge myself to be truly and lawfully indebted to FYNATEX DISTRIBUTORS... in the sum of US$82,740-00". The acknowledgment agreed to payment by 31 January 2015, collection commission, costs on a legal practitioner and client scale, and renounced various legal exceptions including non causa debiti and non numerate pecuniae. When the debt remained unpaid, the applicant brought an application seeking payment from both respondents jointly and severally, together with interest, collection commission and costs. The respondents opposed, arguing that the second respondent signed only on behalf of the first respondent in his representative capacity, that he had scant understanding of English and did not understand the legal exceptions he renounced, and that he was negotiating settlement of the debt.

• Whether the second respondent incurred personal liability under the acknowledgment of debt or signed only in his representative capacity
• Whether the second respondent's claim of not understanding English and the legal exceptions renounced provided a defense
• Whether a party can simultaneously contest a debt in court while negotiating its settlement
• The proper calculation of collection commission under the Law Society of Zimbabwe Bye Laws
• Whether collection commission and legal practitioner and client costs can both be awarded in the same matter

1. The 1st and 2nd respondents shall pay the applicant the sum of $82,740.00 in arrear rentals jointly and severally, the one paying the other to be absolved. 2. Interest on that amount at the rate of 5% per annum from 6 November 2014 to date of payment. 3. Costs of suit on the scale of legal practitioner and client.

The binding legal principles established are: (1) In interpreting acknowledgments of debt, courts apply the same rules as statutory interpretation - giving words their grammatical meaning unless this defeats the parties' clear intention; where a person acknowledges "myself" to be indebted, this creates personal liability regardless of any representative capacity. (2) A litigant cannot approbate and reprobate - one cannot simultaneously negotiate settlement of a debt while contesting liability for that debt in court proceedings. (3) Collection commission under the Law Society of Zimbabwe Bye Laws is calculated at 10% for the first $5,000, 5% of the next $5,000, and 2.5% of the remainder - not a flat 10% of the total debt. (4) Collection commission and legal practitioner costs are mutually exclusive; collection commission is only recoverable for amounts actually collected by the attorney prior to judgment, while costs are awarded when the matter proceeds to judgment and recovery results from the court's order rather than the attorney's collection efforts.

The court made pointed observations about the systematic error by legal practitioners in claiming collection commission as 10% of the entire debt, commenting: "It is strange that so many legal practitioners continue to systematically claim collection commission as 10% of whatever amount is being recovered ostensibly in terms of the Law Society Bye Laws. Just how possible is it to make the same mistake so repeatedly and by so many?" The court noted that while the Law Society commendably engages in continuing legal education, such basic issues as proper calculation of collection commission are being overlooked, which "expose members of the Law Society as being very wanting indeed." The court also suggested that the opposition to the application may have been mounted "as a ruse to gain time" given the contradictory position of contesting the debt while simultaneously claiming to be close to settling it.

This case is significant in Zimbabwean jurisprudence for: (1) clarifying the interpretation of acknowledgments of debt and when personal liability attaches to a signatory who also holds a representative capacity; (2) reaffirming the principle against approbation and reprobation in litigation; (3) correcting the widespread misconception among legal practitioners regarding the calculation of collection commission under Law Society Bye Laws (10% only applies to the first $5,000, not the entire debt); and (4) reinforcing the principle established in Sedco v Guvheya that collection commission and legal practitioner costs are mutually exclusive remedies - collection commission applies only to pre-judgment collections, while costs apply when matters proceed to judgment.