CEPRAT FARMING (PVT) LTD v BRIGHTLAND FARMING (PVT) LTD 2010 (2) ZLR 383 (H) 2010 (2) ZLR p383

Flynote

Contract - pledge - parate executie - validity - when such provision valid - need to apply for judicial sanction to enforce agreement

Headnote

▷ In return for goods supplied, but not paid for, the respondent signed an agreement in which it pledged two cold rooms in payment of the debt. A final date for payment was stipulated and when the respondent did not pay, the applicant sought relief under the parate executie. The respondent argued that, in order to execute on the basis of the pledge agreement, ^ε the applicant ought first to obtain a judgment authorising the sale of its (the defendant's) property. Held, that the issue was not to prove a claim but to enforce an agreement. All that the applicant sought was judicial sanction to deal with the pledged assets. The common law, insofar as stipulations for parate executie are concerned, is that stipulations, which are not so far-reaching as to be ^ε contrary to public policy, are valid and enforceable; that, as a matter of practice, creditors seeking to enforce such stipulations should take the precaution of applying for judicial sanction before doing so; and that the debtor can avail himself of the court's assistance in order to protect himself against prejudice at the hands of the creditors.

¶ Held, further, that the pledge agreement constituted clear consent by the respondent to parate executie. It established that the respondent indeed owed the plaintiff the sum in question. Accordingly, once the existence of the document was established and found to be authentic or genuine and to have been entered into freely and voluntarily, the applicant's case must succeed.