Interfin Banking Corporation Limited t/a Interfin Bank (Under Curatorship) (Represented by Peter L. Bailey in his capacity as curator) v Goldlock Industries 2003 (Private) Limited and Others

The plaintiff bank, under curatorship, issued summons claiming provisional sentence for USD 433,046.28 against three defendants. The claim was based on: (1) a first mortgage bond executed on 28 April 2010 by the first defendant over Stand 666 Marlborough Township Extension 5, with a capital amount of USD 160,000.00; and (2) deeds of suretyship executed by the second and third defendants as sureties and co-principal debtors for the first defendant's obligations. The plaintiff sought payment of the amount plus 20% interest, collection commission, declaration of special executability of the property, and costs on a legal practitioner-client scale. The defendants opposed on multiple grounds including that the claimed amount was not liquid, the mortgage bond only reflected USD 160,000.00, the plaintiff lacked standing due to alleged cession of the claim, and failure to comply with Rule 24 of the High Court Rules requiring particulars of notice when provisional sentence is claimed on a mortgage bond.

• Whether the plaintiff's claim for USD 433,046.28 was sustainable based on a mortgage bond reflecting only USD 160,000.00
• Whether the certificate of indebtedness constituted a liquid document for purposes of provisional sentence proceedings under Order 4 Rule 20
• Whether the plaintiff complied with Rule 24 of the High Court Rules requiring that when provisional sentence is claimed on a mortgage bond, the date and manner of notice must be stated in the summons
• Whether the plaintiff had standing to institute proceedings given the alleged cession of the claim to a third party
• Whether the defendants had a bona fide defence with prospects of success

Provisional sentence was refused. The case was ordered to stand over for trial in terms of Rule 34 of the High Court Rules 1971. No order as to costs was mentioned in the judgment.

Rule 24 of the High Court Rules 1971 is mandatory and requires that when provisional sentence is claimed on a mortgage bond which has become due by reason of notice given or interest being unpaid, the summons must state the date when and the manner in which notice was given or the particulars of the unpaid interest. A certificate of indebtedness does not constitute notice requiring the defendants to settle for purposes of satisfying Rule 24. Non-compliance with Rule 24 is a fatal defect that requires refusal of provisional sentence, and the matter must stand over for trial in terms of Rule 34.

The court noted that while the plaintiff's concession to restrict the claim from USD 433,046.28 to USD 160,000.00 (the amount reflected in the mortgage bond) was proper, this concession could not cure the fundamental procedural defect of non-compliance with Rule 24. The court also indicated that given the fatal non-compliance with the mandatory rule, there was no need to consider the rest of the respondents' grounds of opposition, suggesting that the other defences raised (including issues of standing, whether defendants had a bona fide defence, and the nature of the surety agreements) might have had merit but were not necessary to determine.

This case reinforces the strict procedural requirements for obtaining provisional sentence in mortgage bond cases in Zimbabwe. It emphasizes that Rule 24 of the High Court Rules is mandatory and that failure to comply with it is fatal to a provisional sentence application, regardless of the merits of the underlying claim. The case demonstrates that courts will not grant provisional sentence even where the plaintiff restricts its claim to the amount specified in the mortgage bond if the procedural requirements for notice have not been met. It highlights the distinction between a certificate of indebtedness and proper notice to the debtor, clarifying that the former does not satisfy the notice requirements of Rule 24.