Jackson Muguti v Godfrey Makoni

### Preamble
1
HH 334-2012
HC 4585/09
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JACKSON MUGUTI

versus

GODFREY MAKONI

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 3 October 2010 and 5 September 2012

Unopposed Application

The plaintiff in person

The defendant in default

MAKONI J:	The plaintiff who is a cessionary, sued the defendant for the payment of the sum of $7000-00. The claim was based on an acknowledgement of debt signed by the defendant on 25 October 2008. The defendant defended the matter up to the pre-trial conference stage when he defaulted. His defence was struck out and the matter was referred to the unopposed roll.

On the set down date, I asked the plaintiff to advance argument on the legality of the transaction between the defendant and the cedant. I raised the issue because at the time the acknowledgment of debt was executed the official currency of trade in the country was the local currency. The question was whether the transaction did not contravene the Exchange Control Regulations and thus illegal.

The plaintiff’s position is not very clear on the papers. In one breath he says the plaintiff’s claim is not tainted with illegality whilst in another he says it is and pleads with the court to relax the par delictum rule.

I will deal with both scenarios since the plaintiff is a self-actor. In my view the transaction is illegal. Both the cedant and the defendant were both resident in Zimbabwe and they transacted in foreign currency in contravention of the provisions of the regulations.

The plaintiff then pleads with this court to relax the in pari decticto est condutio possidentis to do simple justice between the parties. In casu, the difficulty that I have is that I have not had the benefit of the acknowledgement of debt so as to see the background to its execution. It was not attached to the papers. As a result I am not in a position to say whether the defendant is seeking to reap where he did not sow or not as was the case in Dube v Khumalo 1986 (2) ZLR 103 (SC).

In view of the above, I cannot grant the default judgment.

I will therefore make the following order:

The plaintiff’s claim is dismissed.

O Matizanadzo & Associates, defendants’ legal practitioners