SHAVA v BERGUS INVESTMENTS (PVT) LTD & ANOR 2011 (2) ZLR 340 (H)

Flynote

Practice and procedure “ execution “ judgment sounding in local currency “ local currency not in use at time of execution “ not competent for judgment creditor to revalue debt in foreign currency “ need for judgment creditor to make court application for conversion of currency

Headnote

"The judgment upon which execution is issued must be a judgment from which there can be gathered what money or thing the judgment debtor must deliver" (dicta per Clayden J in McNutt v Mostert 1949 (3) SA 253 (T) followed).

The appellant and the first respondent had entered into a lease agreement for certain domestic premises in 2003. In March 2008, the first respondent, following its cancellation of the lease agreement, obtained an order in the magistrates court for the eviction of the appellant and payment of holding over damages, which were calculated in Zimbabwean currency. The first respondent did nothing about enforcing the order until a year later, by which time Zimbabwean currency was no longer in use. It then enforced the eviction order and executed against the appellant's property, having arbitrarily revalorised the claim in US dollars on execution. The appellant filed an urgent chamber application in the High Court to stay execution of the writ. Among the issues to be determined was whether the first respondent was entitled to revalorise its claim on execution.

Held, that the claim was in Zimbabwe dollars, as was the judgment of the court a quo. The revalorisation of the claim in US dollars on execution was not only incompetent for arbitrariness but offended against the time honoured principle of currency nominalism. That principle holds that a debt sounding in money has to be paid in terms of its nominal value, irrespective of any fluctuations in the purchasing power of the currency. The first respondent ought to have made a court application for the conversion of the currency.