Court name
Supreme Court of Zimbabwe
Case number
SC 3 of 2006
Civil Appeal 234 of 2005

Masiyiwa v Gapa and Another (34/05) (SC 3 of 2006, Civil Appeal 234 of 2005) [2006] ZWSC 3 (09 January 2006);

Law report citations
Media neutral citation
[2006] ZWSC 3



4


SC
3/06


















DISTRIBUTABLE
(4)


Judgment
No. SC 3/06


Civil
Appeal No. 234/05








ATIWONEYI
MILES MASIYIWA v (1) FELIX MUNETSI GAPA (2)
DEPUTY SHERIFF OF HARARE








SUPREME
COURT OF ZIMBABWE


ZIYAMBI
JA, MALABA JA & GWAUNZA JA


HARARE,
JANUARY 10 , 2006








G
Gapu
,
for the appellant


No
appearance for the respondents








GWAUNZA
JA: After hearing argument in this matter, we issued the following
order:






“1. The
appeal be and is allowed with costs.






2. The
judgment of the court
a
quo

is altered to read as follows:











1. Defendant shall pay plaintiff
damages based on the current market value of the property in issue.
Such value shall be determined
by an estate agent appointed by the
Registrar of this Court.





2. The
Defendant shall pay interest on the market value of the property at
the prescribed rate from 4 July 2005, being the date of
the
evaluation, up to the date of payment in full.






3. Defendant
shall pay costs of suit.”








We
indicated that the reasons for this judgment would follow, and these
are they:






The
appellant does not appeal against the substantive part of the
judgment of the court
a
quo
,
which ordered him to pay to the respondent damages in an amount
equivalent to the current market value of the property in dispute.

He is appealing against paragraph 2 of the same judgment, which
ordered that he should also pay interest on those damages, at the
prescribed rate, from the date of the summons to the date of payment.





His
sole ground of appeal reads as follows:






“The
court
a
quo

erred in law by ordering that interest be calculated with effect from
the date of summons up to the date of payment when damages
were to be
based on the current market value of the property assessed three
years later. Interest should be calculated with effect
from the
date of service on the appellant of the assessed value of the
property.”









In support of
this argument, the appellant contends correctly as follows in his
heads of argument:






“1.1 It
is a well settled principle of our common law that a

debtor is liable for interest while he is in
mora.
‘There can be no doubt that, on a claim for unliquidated damages,
the defendant cannot be in
mora
until the quantum of the damages has been fixed by the judgment of
the Court.’
R.H.
Christie
,
The
Law of

Contract
in S.A
.
(third edition) Butterworths (1996) pages 565 – 566
.
Wessels, The Law of

Contract
in South Africa

(second edition) Butterworths 1951, 3355. See also
Victoria
Falls & Transvaal Power Company Limited

v
Consolidated
Langlagte Mines Limited

1915 AD1, at pages 31 – 33,
Union
Government v Jackson

1956 (2) SA 398 (A) at p 412E,
West
Rand

Estates
Limited v New Zealand Insurance Company Limited

1926 AD 173, at pp 195 – 196.”









The
appellant submits, accordingly, that he was in
mora
lege

with effect from 19 July 2005 when he was served with the Writ of
Execution, and should therefore be ordered to pay interest from
that
date.






As indicated
the Court finds there is merit in the appellant’s contention that
the appellant could not be held to have been
in
mora

from the date the summons was issued. The appellant argued that the
correct date from which he should be regarded as having been
in
mora

was the date he received the warrant of execution against his
property, that is 19 July, 2005. The Court is, however, of a
different
view. The issuance of a warrant of execution normally
follows the failure by a defendant or respondent to comply with an
order
of the court requiring him, for instance, to pay a certain
amount of money to the plaintiff or applicant. It is therefore
premised
on the assumption that prior notice, as to the effect of the
court order, would have been received but ignored by, the party
required
to comply with the order in question. By the same token,
the appellant must be taken to have received notice of the evaluation
of the property in question, on the date of the evaluation report,
that is 4 July 2005. This is the date from which he should
appropriately
be regarded as having been
in
mora

for purposes of the payment of interest.






The Court
was persuaded by the appellant’s further contention that since the
court
a
quo

clearly had not applied its mind to the issue of interest, there was
no fear of this Court being deemed to have interfered with the
discretion of the court
a
quo
.






All in all,
the decision of the court
a
quo

on the question of interest could not be allowed to stand, hence the
order referred to at the beginning of this judgment.







ZIYAMBI JA: I agree.









MALABA JA:
I agree.






Scanlen &
Holderness
,
appellant's legal practitioners