Nyasha Mudonhi v Isabel Nyoka

On 9 April 2021, the defendant signed an acknowledgment of debt (AOD) in favor of the plaintiff for US$445,102.00, promising to pay in full by 16 April 2021. The plaintiff issued a summons for provisional sentence on 11 June 2021 claiming US$295,102.00. The defendant opposed the claim, alleging: (1) illegality because clause 3 of the AOD required payment in US dollars only, contrary to Zimbabwean law recognizing the Zimbabwean dollar; and (2) undue influence, claiming she was threatened with "disappearance" by senior political members and that the actual loan was only US$175,000.00 of which she had paid US$150,000.00. However, correspondence between the parties' lawyers from June 2021 showed the defendant had been seeking time to refinance through a bank loan and shared her First Capital Bank loan facility agreement, with no mention of duress or illegality until the opposing affidavit filed on 7 July 2021.

• Whether the acknowledgment of debt was invalid due to illegality arising from requiring payment in US dollars only
• Whether the defendant signed the acknowledgment of debt under undue influence
• Whether provisional sentence should be granted on a liquid document where defences of illegality and duress are raised
• What standard of proof is required to establish undue influence as a defence to enforcement of an acknowledgment of debt

1. Provisional sentence in the sum of US$295,102.00 was granted. 2. Defendant to pay interest at the prescribed rate (5% per annum) from 17 April 2021 to date of payment in full. 3. Defendant to pay collection commission in terms of the Law Society of Zimbabwe By-Laws. 4. Defendant to pay costs of suit on the legal practitioner and client scale.

1. In provisional sentence proceedings based on a liquid document (acknowledgment of debt), the defendant bears the onus of proving any defence raised, including undue influence. 2. To establish undue influence as a defence, a defendant must prove that: (a) the pressure applied was so extreme or severe as to negative voluntariness; (b) the influence was unscrupulous and weakened the power to resist; (c) the defendant protested and took steps to avoid the forced action; (d) the threat was the motivation for signing and was of imminent or inevitable evil; and (e) the defendant's fear was reasonable. 3. A debt sounding in money must be paid at its nominal value irrespective of fluctuations in the purchasing power of currency. 4. There is a presumption against giving laws retrospective construction. 5. Where an acknowledgment of debt is clear and certain, provisional sentence will be granted in the absence of credible evidence to vitiate it.

The court observed that the defendant, assuming she was pressured to sign the acknowledgment of debt, could have informed her lawyers of this when she first consulted them, and could have made a report to the police since a threat to make someone disappear is a serious criminal matter. The court noted that none of these steps were taken. The court also noted that paragraph 10 of the acknowledgment of debt provided for costs on the legal practitioner and client scale if litigation ensued, which supported the award of costs at that higher scale.

This case clarifies the requirements for successfully raising undue influence as a defence to provisional sentence proceedings in Zimbabwe. It establishes that mere allegations are insufficient; defendants must provide concrete evidence demonstrating that pressure was so extreme as to negative voluntariness. The case also confirms that debts denominated in foreign currency must be paid at nominal value and that there is a presumption against retrospective application of currency laws. The judgment reinforces that liquid documents will be enforced absent credible evidence vitiating them, and that defences raised belatedly without corroboration in prior conduct will be rejected. It provides guidance on the evidentiary burden and standards for challenging acknowledgments of debt on grounds of duress.