Local tycoon Phillip Chiyangwa has made a court application for the rescission of a judgment compelling him to pay US$4 million to Interfin Banking Corporation in a move seen as a desperate attempt to protect his assets from attachment.
Although Chiyangwa provided immoveable property as security under his Native Investments Africa, which is cited as the third respondent in the High Court case where the businessman’s Pinnacle Property Holdings is the first respondent, a November 19 High Court ruling by Justice Makoni during a pre-trial conference ordered Chiyangwa, who is the second respondent in the case, to pay more than US$4 million owed to the financial institution. Interfin is now under liquidation.
A November court order in possession of businessdigest, which struck off Chiyangwa’s appearance to defend and plea because he was in default, ordered the businessman to pay US$2 million as the capital amount, US$2 million in interests, US$60 110 in bank charges and interest on the sum of US$4 million at a penalty rate of 10% per annum over and above the rate of interest applicable to Pinnacle Properties Holdings’s overdraft from time to time from the date of judgment to date of full payment.
This means Chiyangwa, who bound himself as surety and co-principal debtor for the repayment on demand of all sums of money, could get his personal assets attached if he fails to pay, hence the application for rescission of judgement.
Chiyangwa’s application, according to legal experts, does not however stop execution of the judgment, which “can only be stayed by an urgent chamber application which has to be granted.”
In his application for rescission of judgment, Chiyangwa argues he did not willfully fail to appear for the pre-trial conference, saying he had succumbed to some medical complications. He also argues that he has a bona fide defence on the merits because Interfin failed to avail the full capital amount of US$2 million agreed by both parties making it impossible for Chiyangwa’s company to perform in terms of the credit.
“Consequently, the plaintiff, who is first respondent in this application, precipitated the breach of the credit facility agreement by the 1st defendant and cannot found a claim on a breach it precipitated,” said Chiyangwa in a November 24 affidavit.
“The very fact that the respondent is undergoing liquidation is a marked pointer of the financial problems that the respondent has always had.”
The businessman also argued the 10% penalty rate and interests were usurious in a market with low annual inflation rates.
The November 19 judgment came after Interfin Bank’s lawyer Antony Chagonda of Sawyer & Mkushi Legal Practitioners made an application for default judgment against Chiyangwa on the basis that there was non-compliance with practice directive 1 of 1995 as read with Rule 182 of The High Court of Zimbabwe Rules, 1971 for a round table discussion as directed by the Registrar of the High Court and that he was in default at the pre-trial conference. Chiyangwa was in default as he failed to attend the pre-trial conference and hence a default judgement was granted in favour of Interfin Bank.
A November 11 letter requested Chiyangwa, through his lawyers Mutamangira and Associates Legal Practitioners, to attend a roundtable meeting.
“In line with the practice that the parties hold a round table meeting before the pretrial with the view of curtailing issues.
We suggest that the parties meet for that purpose on any day between the 13th and the 17th of November 2015 at a mutually convenient time and place for our part we would be happy to do so either on November 16 or 17 November 2015”, wrote Chagonda.