The Debt Collection Process in Zimbabwe

INTRODUCTION

Many people are unsure of how the debt collection process in the Zimbabwean courts works. As a result, many people suffer prejudice due to a delay in the proceedings and in some instances the claim becomes prescribed (expired). There are a number of options available in recovering a debt and depending on one’s specific circumstances, the following are the different stages that can be followed.

Stage 1: COURTESY CALL

After receipt of initial instructions, your lawyer will contact the debtor and explain that the file has been formally handed over to legal practitioners. The lawyer will clarify that it is a courtesy call and that, should the debtor pay immediately, court proceedings will no longer be necessary. However, should they fail to make payment, formal proceedings will ensue.

If the debtor cannot pay the amount in one instalment, your lawyer may request that they sign an Acknowledgement of Debt. This document sets out exactly when the debtor is to make payment and specifies any other payment terms the Parties would have agreed to. If the debtor does not make payment in terms of the Acknowledgement of Debt, your lawyer will proceed with legal action.

Benefits of an Acknowledgement of Debt include:

• The debtor acknowledges to be indebted and confirms that he/she does not have any valid defence;
• The debtor also renounces the benefits of the legal exceptions to defend debt such as “excussion”, “division”, “cession of action”, “non causa debiti”, “no value received”, “revision of accounts” and “de duobus vel pluribus reis debendi”.
• Additional terms that protect the creditor may be included in anticipation of possible litigation such as those relating to Jurisdiction and legal costs.

STAGE 2: LETTER OF DEMAND

A letter of demand is a written notice to the debtor demanding or requiring payment of the debt.  A well-crafted letter of demand will include the following basic information:

• A description of the amount owed.
• How the debt was incurred (e.g., unpaid fees for services rendered).
• The amount of interest or penalties for late payment.
• The consequences of not paying (e.g., a lawsuit).
• Reference to the relevant documents such as invoices, contracts or other relevant communications.

Although the debtor should already know this information, including the information in a letter of demand gives the debtor clear notice that legal remedies to recover the debt may soon follow.  A letter of demand does not get filed with the court (when you send the letter of demand).  The purpose is simply to give the debtor one last opportunity to take the debt seriously and pay up before further steps are taken to recover the balance due. The key advantages of sending a legal letter of demand:

• Gives out a straightforward message that the creditor is serious about the debt collection and about taking legal action.
• It puts the debtor in mora. This is important especially where the debt arose by way of an oral agreement. Putting the debtor in mora means the debtor cannot later claim that payment was not yet due, which claim could be a valid defence.
• Gives the borrower one last chance to liquidate the debt and purge ant breach of contract before proceeding to take a strict legal remedy. This is usually a requirement in terms of most written agreements.
• Helps to uphold goodwill and maintain a positive working relationship between the creditor and the debtor.

STAGE 3: SUMMONS AND RESPONSE

If the debtor still fails to pay, your lawyer will proceed with summons against them. The summons must be issued at the court within the jurisdiction (area) of the debtor’s residential address, employment address or place of business. Once the Sheriff/Messenger of Court has successfully served the summons on the debtor, the debtor must either file its consent to an order being granted or its notice of intention to defend the legal action being instituted. If the debtor fails to serve and file its notice of intention to defend within the prescribed period, the creditor is entitled to proceed with a request for default judgement.

Default Judgment: Where the debtor fails its notice to defend within the prescribed time period or the debtor does file same but fails to file and serve a plea explaining its defence within the prescribed time period, the creditor may request the Court to grant an order against the debtor for failing to respond.

OR

Summary Judgment: When an Appearance to Defend is entered the creditor may file a notice in which he explains that there is no genuine defence to his claim and the Appearance to Defend is entered in to delay the process. This is usually an option where there is a valid Acknowledgment of Debt signed by the debtor. If successful, an order will be granted against the debtor and the action will not go to trial.

OR

If Summary Judgement Application is dismissed or the debtor defends the Action a number of processes are followed before final judgment is given. These processes are meant to guard against possible abuse of the courts by allowing both parties to the dispute an opportunity to state their case.

• Pleadings: These are court papers exchanged between the parties and filed in Court in which the creditor validates their case and the debtor details the facts upon which their defence is based.
• Discovery: Both parties have the right to request documents (e.g.: invoices, delivery notes) in each other’s possession to prove or disprove a case.
• Trial: Oral and written evidence is led from each side and the court is required to make a decision, either to give a judgment or dismiss the action.

STAGE 3: JUDGEMENT IS GRANTED

There are numerous mechanisms a creditor has to recover the debt once judgment has been given:

Warrant/Writ of Execution: 

Once the judgment has been granted, the creditor may proceed and obtain a warrant of execution which authorise the Sheriff to execute against the debtor’s property. The sheriff will then make an inventory that reflects the goods that are under attachment and an estimate valuation. The sheriff subsequently removes the attached goods and arranges a sale in execution. Usually the first warrant is to attach movables however, in cases where the attached movable goods do not satisfy the debt, a warrant of execution against immovable property Immovable property may be issued.

 Garnishee Order

If the debtor has money in a savings, in an investment account or earns a consistent salary, an application can be made in which the bank or employer is ordered to pay the amount directly over to the creditor.

Application to sell immovable property

If the mechanisms above are still not enough to satisfy the debt, an application can be made to sell the debtor’s immovable property.

Debt collection is a time-consuming process. Time is money. Contact JPLP debt collection law experts today. We will take over the time-consuming task so that you can focus on growing your business.