Nestle Zimbabwe (Pvt) Ltd v Allen Wack & Shepherd (Pvt) Ltd

The plaintiff sued the defendant for provisional sentence based on an acknowledgment of debt signed on 25 October 2018, in which the defendant acknowledged owing the plaintiff US$3,118,287.17. Under the acknowledgment of debt, the defendant undertook to liquidate the debt in monthly instalments of US$300,000. The defendant defaulted in making the monthly instalments, leading the plaintiff to issue summons for provisional sentence. The defendant opposed the claim on two grounds: (1) that there was an error in calculating the amount due, asserting that only US$1,425,623.87 was owed, and (2) set-off, claiming that the plaintiff owed it US$593,157.31 for services rendered.

• Whether the defendant could challenge the amount stated in the acknowledgment of debt on grounds of calculation error in provisional sentence proceedings
• Whether the defence of set-off was available to the defendant where the amount claimed was not certain or readily ascertainable
• Whether the plaintiff had established its entitlement to provisional sentence based on the liquid document

Provisional sentence was granted against the defendant for: (a) payment of US$3,118,287.70 plus interest at the prescribed rate calculated from 1 November 2018 to the date of payment in full; and (b) costs of suit on the legal practitioner and client scale.

In provisional sentence proceedings based on an acknowledgment of debt: (1) The cause of action is founded upon the acknowledgment of debt itself, not on underlying calculations, making challenges to calculations irrelevant at the provisional sentence stage. (2) A debtor who has signed an acknowledgment of debt, accepted and acted upon it by making partial payments or agreeing to payment terms, and only challenges the amount after defaulting and being sued, acts in bad faith and cannot successfully challenge the liquid document. (3) The defence of set-off is only available where the amount owed by the plaintiff to the defendant is definite or readily ascertainable; where evidence would need to be produced to establish the quantum, the defence cannot be invoked in provisional sentence proceedings. (4) A liquid document creates a rebuttable presumption of indebtedness that entitles the creditor to expeditious relief without waiting for trial.

The court observed that the defendant had not paid even the amount it admitted owing in its opposing affidavit, which further undermined its credibility and good faith in opposing the claim. The court also noted the purpose of provisional sentence procedure as enabling a plaintiff to obtain enforceable provisional judgment quickly and expeditiously without waiting for final determination of disputes between parties, citing South African authorities Richamn v Ben-Tovim 2006 (2) SA 591 (C) and F O Kolberg (Pty) Ltd v Atkinson's Motors Ltd 1970 (1) SA 660 (C). The court emphasized that this procedure is designed to avoid the expense and delay of waiting for trial when a creditor is armed with a liquid document.

This case illustrates the application of provisional sentence procedure in Zimbabwean law and reinforces the principle that once a debtor has signed an acknowledgment of debt (a liquid document), challenges to the amount acknowledged cannot be raised belatedly after default, particularly where the defendant shows lack of good faith by only contesting the amount after being sued. The case also clarifies the requirements for the defence of set-off in provisional sentence proceedings, emphasizing that the amount claimed must be definite or readily ascertainable. It demonstrates the court's protection of the expeditious nature of provisional sentence proceedings against dilatory defences.