Online Reporter
Trust Maanda
Legal Position
ONE of the ways to enforce a judgment is the attachment of property, immovable or movable and their sale in execution.
This sale is usually at an auction by the sheriff or messenger of court.
The highest bidder buys the property and the judgment debt is paid to the judgment creditor.
When the debtor’s property has been exhausted while the debt remains unpaid, the other remedy is of civil imprisonment.
In this case, the creditor institutes a process of civil imprisonment.
Civil imprisonment refers to the process where a judgment debtor can be imprisoned for failing to pay a civil debt after a court has issued a judgment against them.
The rules of the magistrate court and the High Court make provisions for civil imprisonment.
A summons for civil imprisonment is served on the debtor, requiring them to appear before the court and explain why they have not satisfied the judgment debt.
The court then examines whether the debtor is unwilling, but able to pay.
The court inquiries into the debtor’s ability to pay and whether civil imprisonment is an appropriate measure.
The summons are a formal notice requiring the debtor to appear before the court and explain why they have not paid the debt.
The summons are issued in the court where the original judgment was made or where the judgment has been registered.
Because the summons for civil imprisonment affect the liberty for a person, they must be served personally on him.
When the debtor appears in court, the court then examines whether the debtor is unwilling, but able to pay.
This is when the court ensures that the judgment debt has not been paid before considering imprisonment.
The court will investigate their financial situation to determine their ability to pay the debt.
This is so that the court will assess whether civil imprisonment is a suitable remedy in the given circumstances.
Some of the factors that the court considers include the debtor’s income, assets, and expenses to evaluate their capacity to settle the debt.
If the debtor shows that he or she is genuinely unable to pay due to circumstances beyond their control, the court may not order civil imprisonment.
The court will also consider whether the debtor is not deliberately refusing to comply with the judgment.
The onus stands upon the debtor to establish that he or she does not have the means or ability to pay the debt.
The court needs to consider the debtor’s ability to pay and the appropriateness of civil imprisonment.
There are arguments on whether the Constitution of Zimbabwe in Section 49(2) forbids civil imprisonment when it provides that no person should be imprisoned merely on the grounds of inability to fulfil a contractual obligation.
One may argue that civil imprisonment is not encouraged by the Constitution of Zimbabwe. It seems not to like imprisonment for civil debt solely due to poverty.
However, in Chinamora v Angwa Furnishers (Pvt) Ltd 1996 (2) ZLR 664 (S), the Supreme Court held that civil imprisonment is constitutional.
The courts remain cautious in ordering civil imprisonment, ensuring that it is only applied in cases where the debtor has the means to pay, but is deliberately refusing to do so.
The court normally orders civil imprisonment in favour of the plaintiff against the defendant, for the defendant to be lodged at a named prison for a specified period unless the defendant sooner satisfies the judgment granted against him by the court.
The order of civil imprisonment is often suspended on condition that the defendant pays a specified sum of money per month with effect from the date the court sets.
The officer-in-charge of whatever prison shall receive into his custody and retain therein according to the tenor of such warrant the person against whom the same has been sued out, subject to the provision that the judgment creditor suing out the same shall pay and satisfy the charges for the maintenance of the judgment debtor.
The debtor will be released upon proof that the debt has been paid in full and the costs relating to the process of imprisonment, or where the judgment creditor has not paid the costs of the maintenance of the debtor or the creditor consents to the release.
Civil imprisonment in Zimbabwe is a legal process used to enforce judgment debts by imprisoning a judgment debtor as way to force him to pay the judgment debt when a debtor fails to pay after a court order.
The courts do not rush, but carefully examine the debtor’s financial situation and the circumstances surrounding the failure to pay the debt before considering imprisonment, taking into account all provisions that protect against imprisonment for inability to pay.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
