1. What is a Debt in Zimbabwe?

In terms of the Prescription Act [Chapter 8:11], a debt is defined as “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict, delict or otherwise.”

2. When does a debt become due?

In Zimbabwe a debt becomes due when it is owing or immediately claimable for a debtor by the creditor. In dealing with the interpretation of the phrase “debt due” Galgut AJA in The Master v I L Back & Co Ltd and Others 1983 (1) SA 986 (A) 1004 held that:

“It seems clear that this means that there must be a liquidated money obligation presently claimable by the creditor for which an action could presently be brought against the debtor. Stated another way, the debt must be one in respect of which the debtor is under an obligation to pay immediately.

Moreso, in Zimbabwe a debt does not become due until the creditor has become aware of the identity of the debtor and of the facts from which the debt arises, provided that a creditor in Zimbabwe is deemed to have become aware of the identity of the debtor and of such facts if he / she could have acquired knowledge thereof by exercising reasonable care.

3. Are there time limits for debts in Zimbabwe?

Yes, the Prescription Act [Chapter 8:11] which was enacted in Zimbabwe regulates the time limits of debts.

4. What is the ordinary statutory limitation period in Zimbabwe?

The ordinary statutory prescription of a debt, in Zimbabwe is three (3) years in terms of the Prescription Act [Chapter 8:11].

5. How long until a debt is no longer valid in Zimbabwe?

Section 15 of the Prescription Act [Chapter 8:11] deals with the periods of prescription in Zimbabwe. In terms of this provision, the period of prescription is:
Three (3) years in case of ordinary cases, except where any enactment provides otherwise.
Six (6) years in the case of

1. (a) A debt arising from a bill of exchange or other negotiable instrument or from a notarial contract;
2. (b) A debt owed to the State.

Fifteen (15) years, in the case of a debt owed to the State or arising out of an advance or loan of money or sale or lease of land by the State to a debtor

Thirty (30) years, in the case of

1. (a) A debt secured by a mortgage bond
2. (b) A judgment debt
3. (c) A debt in respect of taxation imposed or levied by or under any enactment
4. (d) A debt owed to the State in respect of any tax, royalty, tribute share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances.

6. Can the prescription be interrupted?

Yes. If a debtor expressly or tacitly acknowledges the debt, the running of prescription /limitation will be interrupted and the debt will not be extinguished, but revived.

7. What is the importance of timeously chasing up a debt?

Munangati – Manongwa J in City of Harare v Aqua – Jets (Pvt) Ltd & Another HH 65-23 answered this question in the introductory part of her judgment and held that:

“The adage that the law does not help the sluggard finds expression in the operation of the provisions of the Prescription Act [Chapter 8:11] which provides for the prescription of a debt if no action to claim the same is done within a period of three years in the absence of interruption. Such interruption can be through an express or tacit acknowledgment of liability by a debtor in which case prescription shall start running again from the date on which the interruption commenced.”

8. Can I sue someone for the recovery of monies due and owing in Zimbabwe?

Yes. Our law allows a creditor to sue his / her debtor for the amount of an account furnished to the debtor and which the debtor has admitted to be correct. This is usually referred to as a claim for an account stated.

9. Can I sue based on an Acknowledgement of Debt in Zimbabwe?

Yes. The law of acknowledgement of debts is settled in Zimbabwe. In Wyk v Tarcon SC 49- 14, the Supreme Court held that:

“…it is competent to sue a debtor on his admission of liability as set out in an acknowledgement of debt, without founding the action on the original transaction giving rise to that acknowledgement. see Mohamed Adam (Edms) Beperk v Raubenheimer 1966 (3) SA 646 (TPD).”

10. If I am owed money by the government, can I sue them?

Yes. However, in terms of the State Liabilities Act [Chapter 8:14] one has to give notice to the government before they sue it.

11. Can anyone collect a debt in Zimbabwe?

In terms of section 9(2) of the Legal Practitioners Act [Chapter 27:07], apart from an officer of an organisation, or a director of a company, or a member of a partnership acting on behalf of the partnership, the practice of debt collection is reserved for lawyers.

12. Do I need to engage a lawyer to collect a debt in Zimbabwe?

Yes. In Zimbabwe one has to engage the services of a lawyer in order to collect a debt.

13. Can I engage a debt collector to collect a debt in Zimbabwe?

One should not engage so called “debt collectors” to collect their debts in Zimbabwe. In terms of the Legal Practitioners Act [Chapter 27:07], debt collection is a preserve for lawyers in Zimbabwe. Put differently, debt collection in Zimbabwe constitutes part of the practice of law, which is reserved work which only registered lawyers in possession of a valid practising certificate may do. see The Law Society of Zimbabwe v Madyanyika v Wellcash Debt Collectors HH 796-18.

14. What happens if I acknowledge a debt?

You admit liability to repay your creditor a specific sum of money.

15. What is an Acknowledgement of Debt in Zimbabwe?

An Acknowledgement of Debt (‘AOD’) in Zimbabwe as in any other country, is simply an admission of liability made by a debtor to a creditor.

16. What is the purpose of an acknowledgement of debt?

There are various reasons why creditors opt that their debtors sign acknowledgement of debt agreements or contracts. The simplest reason, is that it serves as an admission of liability which can be used as evidence in debt collection proceedings. If the acknowledgement of debt is in writing, it serves as a memorial of the agreement between the parties i.e., legal security. Furthermore, a properly written acknowledgement of debt, facilitates the collection process and reduces the possibilities of conflict and regulates issues such as dispute resolution between the parties in the event of the debtor failing to meet deadlines, payment terms etc.

17. When is an Acknowledgement of Debt necessary?

An acknowledgement of debt is useful o both natural persons and artificial persons, such as companies, corporations and partnerships. An acknowledgement of debt i.e., confirmation by a debtor that a debt exists, is useful when a business has an account with its service providers, and is in need of legal security. It also works as legal security in respect of personal loans. Furthermore, a carefully drafted acknowledgement of debt generally outlines the payment terms and period of repayment of the debt, and provides for the consequences of its breach. Thus, an acknowledgement of debt is necessary in all situations in which money is lent or advanced by a creditor to a debtor.

18. Does an Acknowledgement of Debt need to be in writing?

A written acknowledgement of debt provides proof of what has been agreed between a creditor and a debtor. It helps minimise disputes. However, an acknowledgement of debt in Zimbabwe can also be by word or conduct. see First Merchant Bank of Zimbabwe Ltd v Fortress Industrial Investments (Pvt) Ltd & Another 2000 (1) ZLR 221 (SC).

19. What forms can an Acknowledgement of Debt take?

In Zimbabwe, the Supreme Court in the case of First Merchant Bank of Zimbabwe Ltd v Fortress Industrial Investments (Pvt) Ltd & Another 2000 (1) ZLR 221 (SC). held that an acknowledgement of debt can take various forms, which include but are not limited to:

1. (a) Part payment of a debt
2. (b) Payment of interest on the debt
3. (c) Giving security for payment of the debt.

The South African Constitution Court in Twee Jonge Gezellen (Pty) & Anor v Land and Agricultural Development Bank of South Africa t/a The Land Bank 2011 (3) SA 1 CC 15 held that:

“In principle, however, a document is liquid if it demonstrates, by its terms, an unconditional acknowledgement of indebtedness in a fixed or ascertainable amount of money due to the plaintiff. Many different sorts of documents have been found to qualify as “liquid” in terms of this definition and therefore sufficient to found provisional sentence. They include acknowledgments of debt, mortgage bonds, covering bonds, negotiable instruments, foreign court orders and architects’ progress certificates.”

20. What constitutes a valid acknowledgement of debt in Zimbabwe?

Case law in Zimbabwe has laid out three (3) considerations which define a valid acknowledgement of debt. These are:

1. (a) That the acknowledgement must have been made by the debtor / authorised agent
2. (b) There must be express or tacit acknowledgement of the existence of liability
3. (c) The acknowledgement must have been made in favour of the creditor or his / her agent.

21. How to get an Acknowledgement of Debt?

It may be tempting to search on the internet for a downloadable Acknowledgement of Debt (‘AOD’) Form or Template, however tempting as that maybe, it is advisable that an AOD be drafted by a qualified lawyer, in order for it to be legally valid, compliant and enforceable.

22. Where can I get an Acknowledgement of Debt Form / Template?

Given that an acknowledgement of debt is a formal document, it is best that you have a legal practitioner draft one for you. For assistance in drafting a valid and enforceable acknowledgement of debt, please do not hesitate to contact a duly registered legal practitioner.

Thus, an acknowledgement of debt is necessary in all situations in which money is lent or advanced by a creditor to a debtor. In the event that an organisation has in-house counsel, this could be drafted by the in – house counsel. An acknowledgement of debt should contain essential information, such as:

1. (a) The Creditor’s full name
2. (b) The Debtor’s full name, latest physical and email address;
3. (c) The amount that the debtor owes the creditor
4. (d) The manner and method of repayment
5. (e) The creditor’s bank account details
6. (f) The terms and conditions of the debt together with the consequences
7. (g) The jurisdiction of the courts or arbitral tribunal
8. (h) Non variation clause i.e., entire agreement clause
9. (i) The signature of the parties or their authorised agents.

23. What happens if I fail to fulfil the terms of an acknowledgement of debt?

In the event that a debtor fails to comply with the terms and conditions of an acknowledgement of debt, a creditor has the right to institute debt collection proceedings. A carefully drafted acknowledgement of debt would contain a jurisdiction clause, to the effect that the creditor has a right to institute debt collection proceedings before the courts or before arbitral tribunals.

24. Is a Certificate of Settlement a valid Acknowledgement of Debt?

A Certificate of Settlement which is issued in terms of the Labour Act [Chapter 28:01] is regarded a valid acknowledgement of debt whose enforcement is triggered by registration with an appropriate court. see Mukuradare & Another v Whitehead HCC 15/24.

25. Can you explain some of the Latin phrases in most acknowledgements?

“Non numerate pecunie” means that the debtor was never paid out
“Non causa debit” means that there is no cause for the debt
“Errori calculi” means that there is an error of calculation and there is need for revision of accounts
“De duobus vel pluribus reis debendi” means that there are two debtors and the other one is the one to have been sued
“Beneficum ordinis seu excussions” means that there is a principal debtor who ought to have been sued and executed against first
“Beneficum divisions” means that there are two sureties and liability must be divided amongst them prorate.

26. What are essential elements to be included in an Acknowledgement of Debt?

There is no one size fits all when it comes to acknowledgements of debt. However, most acknowledgement of debt forms or agreements contain standard terms, and below are some of the key things to include / or consider when drafting an acknowledgement of debt:

• The names of the parties
• The identify document particulars of the debtor
• The contact details of the parties
• An acknowledgement of the debt
• The payment terms and period i.e., bank details as well as information of whether the debt would be paid as a lumpsum or instalments
• The legal costs and interest
• Jurisdiction i.e., Magistrates Court, High Court or Arbitration i.e., Alternative Dispute Solutions Centre (‘ADSC’)
• Breach clause
• Entire Agreement Clause

27. Can an email serve as an Acknowledgement of Debt in Zimbabwe?

In the case of Bell PTA (Pvt) Ltd v Chromebase Mining Company (Pvt) Ltd HH 573-24, the High Court of Zimbabwe held that electronic mail, also known as “e-mail” is acceptable as a valid acknowledgement of debt.

28. Can an “SMS” be used as an Acknowledgement of Debt in Zimbabwe?

Yes, a short message service i.e., “SMS” can be used and relied upon before a competent court or tribunal in Zimbabwe to prove the existence of a debt i.e., acknowledgement of debt.
Thus, text messages, WhatsApp, Telegram, WeChat, social media posts, call logs and other digital or electronic means of communication can be used, and have been relied on in Zimbabwe by the courts and found to constitute a valid acknowledgement of debt.
The Supreme Court in the case of GuardForce Investments (Pvt) Ltd v Ndlovu & Others SC 24-16, held:

“Second, the court a quo took umbrage at the fact that communication between the legal practitioners took the form of text messages. In this day and age I see nothing wring in the use of text messages to facilitate communication between people. To take umbrage at the use of text messages, as the court a quo did, is a misdirection.”

29. Is a Thumbs Up Emoji considered a valid signature to an Acknowledgement of Debt in Zimbabwe?

Tshepo Confidence Mashile in an article published in South African’s Attorney’s Journal, De Rebus, April 2017, entitled “Think Before You Emoji” explained the use and consequences of emojis. There does not appear to be any locally decided case on the use of emojis in Zimbabwe. However, in Canada, the court in South West Terminal Ltd v Achter Land and Cattle Ltd [2023] SKKB 116, determined that a thumbs up emoji, was a valid electronic signature to a contract.

30. I have failed to pay in terms of an Acknowledgement of Debt and wish to change the terms to be more flexible, is it permissible?

Negotiation is fundamental in commerce. Once a debt is called up, a debtor can negotiate with a creditor, and agree to a novation of the debt. However, there should be good cause for same, and more often than not, a payment in good faith offered to the creditor. Thus, it is possible for a novation after the event. This may however, mean that the amount due has increased due to the accruing interest.