NUST, through its then vice chancellor the late Professor Lindela Rowland Ndlovu (pictured here), acknowledged the debt in a letter to the Ministry of Higher and Tertiary Education dated October 30, 2013. Prof Ndlovu, on behalf of the institution, undertook to pay the debt of $598 197 in monthly instalments of $7 121 but that did not materialise.That prompted ARUP Zimbabwe to file summons for provisional sentence against the defaulting university. Yesterday the High Court deferred proceedings to next week after the university’s lawyers had filed their opposing papers.Gill Godlonton and Gerrans law firm is acting for ARUP Zimbabwe while Gwaunza and Mapota Legal Practitioners are representing NUST.
NUST registrar Mr Fidelis Mhlanga deposed an opposing affidavit saying the university was a State institution and that it can only make the payment upon release of the funds from Government.“The plaintiff is aware of this position and it entered into an agreement with the defendant with full knowledge that while its claims for payment would be submitted to the defendant, the funds would have to come from Government
“The defendant has not been provided with funds by the funder, who is Government, with which it could meet any such amount that may be shown to be owing to plaintiff. “Where plaintiff knows that its charges can only be paid when Government has provided necessary funding, it is not entitled to sue for payment,” said Mr Mhlanga.Mr Mhlanga said NUST confirms Prof Ndlovu’s letter to be genuine but it was not an acknowledgment of debt. “The document is clearly not an acknowledgment of debt in the ordinary sense that one would understand it, that is, a document by a debtor to a creditor in which the debtor conveys to the creditor the fact that it owes the creditor the specified amount of money,” said Mr Mhlanga. Mr Mhlanga said NUST was actually surprised how the letter from NUST to the Ministry of Higher and Tertiary Education got into ARUP’s hands when it was not intended for the company.It is NUST’s argument that the claim for provisional sentence was not supported by any acknowledgment of debt as contemplated by the rules of the High Court and that it must fail. NUST wants the case to be dismissed with costs.
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NUST registrar Mr Fidelis Mhlanga deposed an opposing affidavit saying the university was a State institution and that it can only make the payment upon release of the funds from Government.“The plaintiff is aware of this position and it entered into an agreement with the defendant with full knowledge that while its claims for payment would be submitted to the defendant, the funds would have to come from Government
“The defendant has not been provided with funds by the funder, who is Government, with which it could meet any such amount that may be shown to be owing to plaintiff. “Where plaintiff knows that its charges can only be paid when Government has provided necessary funding, it is not entitled to sue for payment,” said Mr Mhlanga.Mr Mhlanga said NUST confirms Prof Ndlovu’s letter to be genuine but it was not an acknowledgment of debt. “The document is clearly not an acknowledgment of debt in the ordinary sense that one would understand it, that is, a document by a debtor to a creditor in which the debtor conveys to the creditor the fact that it owes the creditor the specified amount of money,” said Mr Mhlanga. Mr Mhlanga said NUST was actually surprised how the letter from NUST to the Ministry of Higher and Tertiary Education got into ARUP’s hands when it was not intended for the company.It is NUST’s argument that the claim for provisional sentence was not supported by any acknowledgment of debt as contemplated by the rules of the High Court and that it must fail. NUST wants the case to be dismissed with costs.
