Harare: The Supreme Court has upheld a US$114 749,80 debt against the late Zimbabwean ambassador to the Democratic Republic of Congo, in a case involving unpaid farming inputs.
The ruling, delivered by Justices Lavender Makoni, George Chiweshe and Felistas Chatukuta, dismissed Tomana’s appeal against a High Court judgment that had previously upheld an arbitral award in favour of Tian Ze Tobacco Company.
Tomana, who served as Prosecutor-General from November 2013 until his dismissal in June 2017, passed away on 6 August 2023 at the age of 55 from an undisclosed illness upon visiting his rural home. His death, coupled with this recent Supreme Court ruling, adds another layer of complexity to his legacy.
The legal battle stemmed from a series of tobacco farming contracts entered into between Tomana and Tian Ze between 2008 and 2012. The final contract covered the 2011/12 tobacco growing season. Tian Ze, a company specializing in funding tobacco farming by supplying inputs on credit, had provided Tomana with the necessary resources for his farm in the Darwendale area of Mashonaland West province.
Under the terms of the contract, Tomana was obligated to produce 40 000kg of tobacco and clear outstanding debts incurred in previous seasons. However, he failed to meet these obligations, leaving him indebted to Tian Ze in the sum of US$114 749,80 by June 2015.
The matter was referred to arbitration, where Tian Ze sought to recover the outstanding debt. The arbitrator, now Judge Joel Mambara, ruled in favour of Tian Ze, prompting Tomana to appeal to the High Court.
Tomana argued that the arbitral award should be set aside on the grounds that it offended the public policy of Zimbabwe. However, the High Court dismissed his application, prompting him to take his case to the Supreme Court.
In his appeal, Tomana argued that the High Court had erred in partially setting aside the arbitral award, claiming that an arbitral award was not severable. He also contested the High Court’s finding that Tian Ze’s cause at arbitration had not prescribed.
The Supreme Court, in its analysis, addressed the issue of Tomana’s brother, Reuben, who had been cited as a co-debtor in the arbitration. The judges ruled that Reuben, acting as his brother’s farm manager and agent, should not have been included as a principal in the arbitration.
“It is trite that an acknowledgement of debt interrupts the running of prescription. It was common cause that the first respondent (Reuben) was at all material times acting as the appellant (Johannes’) agent, in his capacity as appellant’s agent, wrote to second respondent (Tian Ze) admitting liability in the sum claimed,” the Supreme Court judges ruled.
“The letters constituted acknowledgement of debt which not only interrupts prescription, but also supersedes the original cause of action. It is, on its own, a new cause of action. With it a new prescriptive period begins to run from the date of acknowledgement.”
The judges further clarified that even though Johannes did not personally sign the acknowledgement of debt, his brother, acting as his agent, was responsible for negotiating loans and credit facilities extended to him.
“The award against Tomana remains intact and unaffected. For that reason, it was permissible for the court a quo (lower court) to so delete the offending portion of the award.
“Similarly, the court a quo correctly dismissed the special plea of prescription as same had been interrupted by the acknowledgement of debt, a cause of action in its own right . . . The issue was properly determined on the basis of the papers placed before the arbitrator.
“The record shows that the arbitrator was guided by the issues defined and presented by the parties. We conclude, therefore, that the appeal has no merit. It must be dismissed,” the judges ruled.
