DUMBURA V MUHWEHWESA & ANOR 2010 (2) ZLR 62 (H)

Practice and procedure - onus of proof - allegation of fraud in civil proceedings - criminal connotation thereof - need for proof of such allegation beyond reasonable doubt required

Headnote

A pactum commissorium is a pact by which the parties agree that if the debtor does not within a certain time release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full property in the thing will irrevocably pass to the creditors in payment of the debt. Such an agreement is void and unenforceable. To perfect the security the court's imprimatur is required.

In contravention of s 3 (1)(a) of the Precious Stones Trade Act [Chapter 21:06], as read with s 189(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the parties, not being licensed to do so, attempted to deal in diamonds. In the course of these dealings, the defendants alleged that, in circumstances amounting to fraud, they had given the plaintiff the sum of US$230 000 for the purchase of a hundred carat diamond from one T. This the plaintiff denied. It was his case that he had acted as no more than a facilitator in the dealings between the defendants and T and that the former had handed the money directly to the latter. At the defendant's instigation, the plaintiff was arrested by the police on a charge of fraud and remanded in custody.

In the order to facilitate his release from custody on bail, the plaintiff agreed to sign a memorandum of agreement and an addendum thereto, in the course of which, and while under undue pressure, he admitted criminal liability for fraud and civil liability to the defendants in respect of the monies by which they alleged that they had been defrauded. The plaintiff undertook to surrender to them certain immovable and moveable assets, including a house and five motor vehicles, in return for the defendants undertaking to withdraw the charge against him. Upon delivery of the last of the motor vehicles to the defendants, their legal practitioner advised the prosecutor handling the case that he was agreeable to the granting of bail.

The plaintiff sought the nullification of the memorandum of agreement and the addendum and the return of the five motor vehicles. He argued that the agreement was not freely executed, alternatively that it was illegal because it was based on extortion. The defendant opposed the relief sought and counterclaimed, seeking the plaintiff's eviction from the house.

Held, that the fraud which the defendants alleged had criminal connotations and, as such, they needed to prove it beyond a reasonable doubt so as to discharge the onus which lay upon them. They failed to do so. On the facts, therefore, they had failed to prove that the plaintiff had received the sum of $230 000 from them.

Held, further, that while the plaintiff had been legitimately remanded in custody, he had been subjected to undue pressure. The memorandum of agreement was, therefore, grounded on extortion and, lacking severable clauses, was void and unenforceable.

Held, further, that in any event, there agreement was void and unenforceable because it was a pactum commissorium.

Held, further, that the plaintiff was entitled to the relief he sought. The memorandum of agreement and its addendum were void and the five vehicles should be returned to him. The defendants' counterclaim, being based on the void and unenforceable memorandum of agreement and addendum, must be dismissed.

2010 — Volume 2

Cases

2010 — Volume 2

Cases